Multiple I-140 Approvals: What happens to my priority date and who can file my green card?

Individuals from those countries facing a Green Card backlog are required to wait years, if not decades, for the Visa Bulletin to inform that priority dates are current and that individual can finally file for a long sought-after Green Card.  In that time, life moves on; people buy homes, build families, and develop distinguished careers. Common to almost every human is the reality that we may one day change employers—voluntarily or otherwise. When an individual awaiting an EB-2 or EB-3 Green Card meets that reality and changes employers, they are left with questions as to the status of their Green Card journey. Can I have multiple I-140s filed? Will I get to keep my priority date? Who can sponsor my Green Card now?

So long as a willing employer is offering a bona fide job opportunity, any individual seeking a green card can theoretically have as many I-140 petitions filed on their behalf as they wish. From one to one-million, no law or regulation prohibits an individual from having multiple I-140 petitions on their behalf.  For an individual, there are no negative repercussions for having multiple I-140 petitions filed on their behalf. For employers, apart from ability to pay considerations, there are likewise no negative repercussions for filing multiple I-140 petitions for current or future employees.

When an individual is the beneficiary of multiple I-140 approvals, that individual will always be given the very earliest priority date to which that person is entitled. So that individuals do not “lose their place in line”, the law allows an individual to retain, or “port”, their very earliest priority date in all subsequent I-140 approvals.

For instance, Karthik receives his very first I-140 approval in December 2010 with a priority date of November 9, 2009. In 2012 Karthik moves employers and has a second I-140 filed for him in 2013 with an October 2, 2012 priority date. Even though the true priority date of that second filing falls in 2012, Karthik will still be granted that very first priority date of November 9, 2009. The same would apply if a third or subsequent I-140 was filed: each and every subsequent I-140 approval will be given the November 2009 priority date.

However, it is important to remember that only the company who filed the I-140 can use that I-140 approval to file for a Green Card (I-485). In other words, there is no “portability” of I-140 approvals between employers. The only thing that can be “ported” is a priority date.

As an example let’s assume Karthik’s November 2009 priority date just became current. As a reminder, Karthik received an I-140 approval from Company A in 2010 which gave him the November 2009 priority date. In 2013, Company B obtained an I-140 approval for Karthik. However, now Karthik is working for Company C. What are Karthik’s options?

Option 1: If Karthik has obtained or will obtain an I-140 approval with Company C, he can file for his Green Card through Company C because the law allows him to retain the November 2009 priority date from Company A.

Option 2: Karthik can contact either Company A or Company B to inquire if they would rehire and thus continue sponsoring his Green Card.  As a side note, if a company has withdrawn an I-140 approval, that company can refile the I-140 without having to restart the PERM process, certain small restrictions not withstanding.

Option 3: Maintain current non-immigrant status (as available or applicable), seek a Green Card outside of EB-2 or EB-3 classification, or depart the United States.

By: Ryan Wilck

Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.