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 holds an F-1 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 July 2007.
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. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for adjustment (can actually be filed simultaneously, the beneficiary just opted to wait for the I-140 approval to make sure we got the approval and the old priority date). Our office was retained on July 28, 2014 and started on her Prevailing Wage Request.
We filed the I-140 application on September 12, 2014 via premium processing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Eventually, on September 24, 2014, the I-140 was approved and it retained our client’s old priority date. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition since her priority date is current.