My I-140 was approved before the layoff — can I keep my priority date?
Yes. An approved I-140's priority date belongs to you, not your employer — a layoff, and even your employer's withdrawal of the petition, do not erase it. You keep the date for any future employment-based petition. You only lose it if USCIS revokes the approval for fraud or willful misrepresentation, the underlying labor certification is revoked or invalidated, or the approval rested on a material error.
The rule: priority dates attach to the worker
Under 8 CFR 204.5(e), the beneficiary of multiple approved employment-based petitions is entitled to the earliest priority date across all of them, and a priority date established by an approved petition is retained for subsequent petitions even when the petitioner changes. In plain terms: your priority date is the date your employer's PERM was filed with DOL (or the date USCIS received the I-140, for categories not requiring a labor certification). Once the I-140 is approved, that date is locked to you. A new employer starts a fresh PERM and I-140, but requests your old priority date on the new filing — and USCIS grants it.
Priority dates are not transferable to another person — they move with you, the beneficiary, across employers and across categories (your EB-2 date can later support an EB-3 filing).
The four ways you actually lose a priority date
| Lose it? | Reason | Who acts |
|---|---|---|
| Yes | Fraud or willful misrepresentation of a material fact | USCIS revokes the I-140 |
| Yes | The approved labor certification is revoked by DOL | DOL |
| Yes | The labor certification is invalidated by USCIS or the State Department | USCIS / State Dept |
| Yes | USCIS determines the approval was based on a material error | USCIS |
Note what is not on this list: your employer's withdrawal of the I-140, the company shutting down, or you leaving. The USCIS Policy Manual (Volume 6, Part E, Chapter 8) confirms that once a petition is approved, the beneficiary retains the priority date for future petitions unless one of these grounds applies.
What the "180-day rule" really means
The much-quoted 180-day rule comes from DHS's 2017 retention regulation. It says a request to withdraw an I-140 will not cause revocation if it is received 180 days or more after the petition's approval (or after an I-485 is filed). Practically: if your employer withdraws your I-140 on day 200, the petition stands — your priority date is safe, and you also keep the I-140 alive for H-1B extensions beyond six years under AC21 §104(c). If withdrawal happens before day 180, USCIS will revoke the petition at the employer's request — but the priority date itself still survives for a future filing, because simple withdrawal is not one of the four loss grounds above. The 180-day line matters most for H-1B extensions, not for the date.
What your new employer needs to do
- File a new PERM (if the classification requires labor certification) and a new I-140.
- On the new I-140, request the old priority date and attach the prior approval notice (Form I-797).
- USCIS applies the earlier date to the new petition.
Keep copies of your I-140 approval notice yourself — don't rely on a former employer to hand them over after a layoff.
Frequently asked questions
My employer withdrew my I-140 a month after it was approved. Is my priority date gone?
No. A simple withdrawal does not erase your priority date. A new employer can recapture it on a fresh I-140 with a copy of your approval notice.
Do I need a new PERM with the new employer?
Yes, if the new filing is in a category that requires labor certification (EB-2/EB-3). The new employer must obtain its own certified PERM — only the priority date carries over, not the certification itself.
Can my EB-2 priority date support an EB-3 filing later?
Yes. Priority dates cross categories. The beneficiary of approved petitions is entitled to the earliest date across all of them, so an old EB-2 date can anchor a later EB-3 petition (the classic "downgrade" play).
Sources
- Entry source: https://www.lianglaw.com/Article/2011/0706-change-job-after-I-140-and-I-485.html
- USCIS Policy Manual, Volume 6, Part E, Chapter 8 — priority date retention after petition approval: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-8
- 8 CFR 204.5(e) and 8 CFR 205.1(a)(3)(iii)(C) — retention of priority dates; withdrawal requests received 180+ days after approval (see current eCFR, Title 8)