September 20, 2010 | In: 范毅禹律师
华家伟律师专栏：I-140撤销和优先日期保留
摘要
之前我曾经写过一篇有关I-140优先日期的文章，有不少人来信表达不同的意见。因此我想在此陈述CIS的Operational Manual 与Regulation之间的差别。Regulation说的很清楚，一旦前面公司将I-140取消，申请人将失去优先日期。但是Operational Manual却说除非有Fraud或Misrepresentation,否则优先日期是可以保留的。我们目前已经看到好几个这方面的RFE及Denial Notice（前面的公司取消I-140，因此之前的优先日期也就不能拿来用）。如此，到底是以Regulation，还是Operational Manual为准将是值得注意的问题。
I-140 revocation and preservation of priority dates
Your priority date is established upon completion of a labor certification or submission of an I-140. But regulations clearly state that if an I-140 is revoked, which can happen when an alien switches jobs, the priority date established there under is lost. Considering how important an early priority date is to your immigration plans, this regulation makes it feel as though you are being held hostage by your I-140 sponsoring employer.
In fact, it is possible to change jobs and not lose your priority date. Regulations allow an alien who has multiple approved I-140s to use his earliest priority date when applying for a green card. Thus, if you switch jobs and your new employer files an I-140 for you, you may still use the priority date established under your first I-140. All that is required is that your previous employer, or USCIS, does not revoke your old I-140 after you leave.
If you are lucky, you are able to move to a new job while still on good terms with your previous employer. In such circumstances, you may feel comfortable asking your employer not to revoke your I-140. However, many people are unable to switch jobs so amicably. Moreover, the law requires that sponsoring employers intend to permanently employ the beneficiary, so it is proper for employers to revoke an I-140 after an employee leaves.
However, even if your underlying petition is revoked, there is still hope. Chapter 22 of the Adjudicator’s Field Manual states that a revoked petition should only cancel a priority date if the revocation was due to fraud or willful misrepresentation. This change in the Manual was prompted by former Commissioner for Adjudications L. Weinig, who felt that a strict reading of the revocation regulation unduly restricted an alien’s ability change jobs, get a new labor certification, and retain an original priority date.
Despite the language in the Adjudicator’s Field Manual, in practice USCIS often will not recognize the priority date on a revoked petition, even if there is no evidence of fraud or misrepresentation. It is hard to appeal such a decision, because the language of the regulation itself will always trump the language in the Adjudicator’s Field Manual. The Adjudicator’s Field Manual is merely an instructive document for USCIS internal use, and it carries no independent legal authority if it conflicts with a regulation.
This issue of conflict is central to deciding the question of whether USCIS has the power to limit the revocation regulation’s application to those cases where fraud exists. If the regulation and the field manual can exist side by side, USCIS should have the right to follow the manual. If the two are in conflict, the manual must be changed to reach consistency with the regulation. Considering the language on fraud still appears in the most recent manual, it appears that no one has yet challenged whether the language conflicts with the revocation statute.
In light of this unresolved tension, we still believe that a strong argument can be made to preserve priority dates where petition revocation is merely the result of a good-faith decision to change employers. This would mimic the intent underpinning the priority date portability provisions of AC21, which allow priority date preservation when an alien whose I-485 has been pending more than 180 days accepts a similar position with a new employer. USCIS has wide discretion in how it applies the law, so we believe that this situation is one where aggressive petitioning might pay off.
David Wallace is a graduate of the George Washington University Law School and Elliot School of International Affairs, and is a member of the Virginia Bar. He is formerly of the Beijing University Jade Bird Group, a Chinese high-tech investment group. He is also a former teacher with Shanghai High School, International Division. In addition, he has worked on trade remedy and WTO issues with the Foreign Commercial Service at the United States Embassy in Beijing. His practice focuses business immigration, education, and advising on issues in Chinese-American business cooperation. 华家伟律师毕业于乔治华盛顿大学国际关系学院和法学院，并是弗吉尼亚州律师协会成员。华律师早年受雇于著名的上海中学国际部和北京大学的北大青鸟高科技投资集团。此外，华律师曾服务于美国驻北京总领事馆商务处处理贸易救济和世纪贸易组织案例。华律师专长处理留学及商务移民方面的相关申请以及中美商业合作问题。
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。
www.fan-law.com (Chinese)
www.fanuslaw.com (English)
CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP.370 E. Glenarm St., Pasadena , CA 91106Tel: 626-799-3999 Fax: 626-799-9966
MARYLAND : Fan, Fitzpatrick & Thompson, LLP.843 Quince Orchard Blvd. Suite I (“eye”) Gaithersburg, MD 20878Tel: 301-330-6903Fax: 301-330-6904
Follow US: http://twitter.com/FanUSLaw