Can I Transfer My Priority Date from the Labor Certification Case to NIW?

Question:

I have an approved EB3 Labor Certification based Form I-140 application from my employer, with a priority date of last year September. Due to the immigration visa number retrogression in my home country, I can not apply for the status adjustment for U.S. Permanent Resident of I-485 form.

Since I have a PhD degree, if I apply for EB2 National Interest Waiver Immigration category now, can I transfer my earlier priority date from the Labor Certification case to the later case filed in EB2 National Interest Waiver Immigration category?

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Answer:

Yes, an individual with an earlier priority date established through an approved I-140 petition in one employment-based category may transfer that earlier priority date for a later case filed in a different employment-based category. This can be a benefit for you when the retention of the earlier priority date is permitted for a later filed EB2 National Interest Waiver case.

Please also note that this procedure does not work if the initial I-140 petition has been revoked by your employer, or by USCIS due to fraud, or for use in a labor substitution case. http://www.greencardapply.com/question/question12/question12_0509.htm

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