CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipina
LOCATION: Houston, TX
Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She came to the United States in 2013 and now she is on an F-1 student status, and her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of March 2012.
Since she is a registered nurse, she is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.
Also, under 8 CFR 204.5(e):
“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”
As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.
Our client has a nursing degree and has several years of related experience. Our firm told her that her potential employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on November 17, 2014 and started on her Prevailing Wage Request.
We filed the I-140 application on April 29, 2015 via regular processing. We also concurrently filed her I-485 adjustment of status since EB-3 priority date for our client was current at the time of her I-485 filing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Later, on May 13, 2015, our client upgraded her I-140 processing from regular to premium processing.
However, the USCIS issued a Request for Evidence (RFE) for our client’s degree evaluation document. Our office filed Response to RFE on May 29, 2015. Eventually, on June 2, 2015, the I-140 was approved and it retained our client’s old priority date. Our client’s adjustment of status application will be approved once her priority date becomes current again.
Dear Sir/Madam
I would like to introduce myself. I am Beena P. Luka., an Indian national. I have 18 years experience as a Staff Nurse, Clinical Instructor and Charge Nurse. 2 years I had worked as a Charge Nurse in Emergency Department. I have 8 years of experience in Emergency Room. I had completed my B.Sc Nursing from St. John’s National Academy of Health Sciences, Bangalore India . Also, I have passed the CGFNS (The Commission on Graduates of Foreign Nursing Schools), RN (USA ) and CRNE (Canadian Nursing Council). I would like to get a job as a Charge Nurse or Registered Nurse in ER in USA Hospital.
I have filed my I-140 dated December 13, 2005 and approved on June 22, 2006 and our visa is transferred with NVCI on June 26, 2006.
The Candidate name is BEENA PUTHUSSERY KUNNEL LUKA
Date of Birth April 15, 1970
File Number is EAC-06-053-50504
Filing date is December 13, 2005
Visa Approval Date is June 22, 2006
Visa Bill Generate date is July 17, 2006
Visa payment Date is August 21, 2006.
Visa Number or case number are RID 200 669 2003
Can you help to process our case and thank you in advance for your good co-operation.
Yours faithfully,
Beena P Luka
Email beenapluka@yahoo.com
Beena,
Thank you for the email. You meant you won’t apply for an immigrant visa based on the employer / petitioner of the I-140? Because if you have a new potential employer, that new employer should file an I-140 w/ a request for priority date retention first (assuming the old I-140 was not withdrawn and revoked).
~ JP Sarmiento