Retaining Priority date on a revoked I-140 – Non Precedential BIA case of in Re Grace-Estrellado

In the matter of in Re Grace Estrellado, the BIA in a non-precedential decision decided to depart from the usual government regulation and state that if an I-140 is revoked, then the priority cannot be ported to another approved I-140. This decision although non-biding on other decisions has now created a huge confusion in the legal community and among many applicants. This decision actually departs from the The Foreign Affairs Manual (9 FAM 42.53 N3.5) guidance which states: “Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second, or third preference petition is retained by the beneficiary for any other first, second, or third preference petition approved subsequently for the same beneficiary.”

Since the decision is non-precedential and therefore non-binding, arguments can still be made under the Foreign Affairs Manual that unless Fraud or Willfull misrepresentation, one should still be able to retain the priority date despite a revocation of the form I-140.

If you have any issues on your I-140 or I-485 application or need any assistance, please call us at 510 742 5887