Immigration Law
One of the most common fears I hear from clients in the employment-based green card process involves career growth. You have finally secured an approved I-140, but now your role is changing. Perhaps you are being promoted to a managerial position, or your job title is shifting significantly to reflect new responsibilities.
You likely know that a material change in your job description often requires your employer to "start over" with the Department of Labor—obtaining a new Prevailing Wage Determination (PWD) and filing a new Labor Certification (PERM). The panic sets in when you ask: "Does this mean I lose my place in line?" A ‘material change’ generally means a significant change in job duties, minimum requirements, or occupational classification—not just a raise or minor title adjustment.
I am writing this to set the record straight. While the paperwork might restart, your timeline does not have to. Under specific conditions, priority date retention allows you to keep the date of your original filing, even as you move forward with a new petition.
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In the world of U.S. immigration, your "priority date" is essentially your ticket number in the waiting line. For nationals of countries with significant visa backlogs (like India or China), that date is their most valuable asset.
If you are in the EB-2 or EB-3 category, your priority date is established when your employer files the initial Labor Certification (ETA Form 9089) with the Department of Labor.
When you change jobs—whether with the same employer or a new one—and the new role is materially different, the regulations generally require a new test of the labor market. This generates a new Labor Certification application date. However, federal regulations (specifically 8 CFR 204.5(e)) allow a beneficiary to use the priority date of an earlier approved petition for a subsequent petition.
In simpler terms: The employer files new forms, but I ensure we properly claim the priority date established by your earlier approved petition.
I often see confusion about when this right to keep your date actually "vests."
To retain your priority date, it is not enough to have a certified Labor Certification. You generally must have an approved I-140 petition.
If your previous employer filed a Labor Certification but you left or changed jobs before the I-140 was approved, that priority date is typically lost. The clock resets. However, once the I-140 is approved, the priority date generally becomes attributable to you, the beneficiary—subject to limited regulatory exceptions.This remains true even if:
Let’s look at the specific scenario where an employer sponsored you for an EB-3 Green Card, but you are now changing your job title. Here is the roadmap my team at SG Legal Group follows to protect your timeline:
1. Verification of the Previous I-140
Before we draft any new documents, I verify the status of your previous I-140. We need to ensure it was approved and, crucially, that it was not revoked for fraud or willful misrepresentation. Even if a previous employer withdraws the I-140 after 180 days, you generally retain the priority date, so long as the approval was not based on fraud, misrepresentation, or material error.
2. The "Restart" (New PWD and PERM)
Because the job title and duties have changed, we must treat the position as "new" for the Department of Labor.
Note: On this new Labor Cert form, the "Priority Date" box will show the current filing date. Do not panic. This is procedurally correct. We claim the old date at the next step.
3. Filing the New I-140
This is the decisive moment. When I file the new I-140 petition based on the new certified Labor Cert, I explicitly request the retention of the original priority date. We submit a copy of your previous I-140 approval notice (Form I-797) as evidence. USCIS then prints the old priority date on your new approval notice.
In my practice, I often see clients jeopardize their priority dates due to simple oversight. Here is what I recommend to protect yourself:
1. What exactly is a priority date?
Your priority date is your place in line for an employment-based green card. For most EB-2 and EB-3 cases, it is the date your employer files the PERM Labor Certification with the Department of Labor. When visa numbers are backlogged, this date determines when you can move forward.
2. If my job title changes, do I automatically lose my priority date?
No. A job title or duty change often requires a new PERM and a new I-140, but that does not automatically mean you lose your priority date. If you have an approved I-140, you may be able to retain the earlier date for the new petition.
3. Do I need an approved I-140 to keep my priority date?
Yes. In most cases, priority date retention requires an approved I-140. A certified Labor Certification alone is usually not enough. If the I-140 was never approved, the priority date generally cannot be reused.
4. Can I keep my priority date if I change employers?
Often, yes. If your previous I-140 was approved and not revoked for fraud, misrepresentation, or material error, a new employer may file a new PERM and I-140 and request retention of your earlier priority date.
5. Can I keep my priority date if I stay with the same employer but move into a new role?
Yes, in many cases. If the new role is materially different and requires a new PERM, the employer must restart the process—but you may still retain the earlier priority date when the new I-140 is filed.
6. Does moving from EB-3 to EB-2 (or EB-2 to EB-3) affect priority date retention?
Not necessarily. Priority dates can generally be retained across EB-1, EB-2, and EB-3 categories, as long as the original I-140 was approved and remains valid. The new position must still independently qualify for the new category.
7. What happens if my former employer withdraws my I-140?
If the I-140 was approved and later withdrawn, priority date retention is often still possible, especially if the withdrawal occurred more than 180 days after approval. However, the facts matter, and legal review is important.
8. Can USCIS ever take away a retained priority date?
Yes, in limited situations. USCIS may prevent priority date retention if the original I-140 approval was later found to involve:
This is why prior filings should always be reviewed carefully before relying on an earlier date.
9. Is priority date retention the same as job portability?
No. Priority date retention is different from job portability under AC21, which applies only after you file an I-485 and it has been pending for at least 180 days. You can retain a priority date even if you are not eligible to port a pending adjustment application.
10. What documents should I keep to protect my priority date?
Always keep:
These documents are often essential when requesting priority date retention in a future case.
11. When should I speak with an immigration attorney about priority date retention?
You should consult an attorney before changing jobs, accepting a promotion, or allowing an employer to withdraw an I-140. Early planning can prevent the loss of years of waiting time.
Navigating the intersection of Department of Labor regulations and USCIS adjudications is complex. A mistake in the new PWD classification or a failure to properly document the earlier approval can result in the loss of years of waiting time.
At SG Legal Group, my team and I scrutinize every previous filing to ensure your transition to a new job title does not cost you your place in line. Whether you are in Baltimore, Towson, or consulting with us remotely, we ensure your immigration strategy supports your career growth, not hinders it.
If you need experienced legal guidance for your immigration case, contact me at SG Legal Group. My team and I will help you navigate the process with confidence. Consultations are available in English, Russian, or Romanian. Call 410-618-1288 or visit our Contact Page to schedule a consultation.
Oleg Gherasimov, Esq.
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