I-140 Portability: How to Keep Your Priority Date After a Layoff

Your I-140, formally known as the Immigrant Petition for Alien Workers, is the employer-sponsored petition that establishes your place in the green card queue. The priority date assigned to your approved I-140 determines when you can file for adjustment of status or receive an immigrant visa.

For workers from countries with heavy backlogs — India and China especially — a priority date can represent five, ten, or even fifteen years of waiting. Losing that date would mean starting the entire process over.

I-140 portability is the legal mechanism that lets you carry your priority date forward to a new employer's green card sponsorship, even if your original employer withdraws the petition. Under INA § 204(j) and related USCIS policy, your priority date survives as long as certain conditions are met.

When you are laid off, your former employer may withdraw (revoke) the I-140 they filed on your behalf. This is common — many companies have policies to withdraw pending or approved petitions for departed employees. However, withdrawal does not automatically destroy your priority date.

Under current USCIS regulations, your approved I-140 priority date remains valid for portability purposes if:

• **The I-140 was approved** before it was withdrawn
• **The I-140 was approved for at least 180 days** before the employer requested withdrawal
• **The petition was not revoked due to fraud, misrepresentation, or a material error** on the original filing

If all three conditions are met, you retain the priority date and can use it when a new employer files a fresh I-140 on your behalf. The new petition does not need to be for the same job, the same occupation, or even the same EB category — though practical considerations may apply.

What If Your I-140 Was Pending When You Were Laid Off?

If your I-140 had not yet been approved at the time of your layoff, the situation is more precarious. An employer can withdraw a pending I-140 at any time, and USCIS will typically deny the petition once it is withdrawn. In this case, there is no approved petition to port, and the priority date is lost.

This is why many immigration attorneys recommend requesting premium processing for the I-140 as early as possible — getting to an approval creates a safety net.

What If Your Employer Revokes the I-140 Before 180 Days?

If the employer withdraws the I-140 within 180 days of approval, USCIS may revoke the approval entirely. In that scenario, there is no approved I-140 to port, and the priority date cannot be preserved through this petition. You would need to start a new PERM and I-140 process with a future employer.

The 180-day threshold is the single most important detail in i140 portability h1b planning. Here is how it works in practice:

• **Day 0:** USCIS approves your I-140
• **Day 1–179:** Your employer can withdraw the petition and USCIS will revoke the approval. Your priority date is not protected.
• **Day 180+:** Even if your employer withdraws the petition, the approval "survives" for portability purposes. Your priority date is preserved.

This means timing matters enormously. If you suspect a layoff is coming and your I-140 was recently approved, every additional day that passes strengthens your position. Once you cross the 180-day mark, your priority date is effectively locked in regardless of what your employer does.

How to Check Your I-140 Approval Date

Your I-140 approval date should be on the I-797 Notice of Action you received from USCIS. If you do not have a copy, you can:

• Request a copy from your former employer's immigration counsel
• File a FOIA request with USCIS for your immigration file
• Check your USCIS online account if your case was filed electronically

If you have been laid off and hold an approved I-140, take these steps immediately:

1. Confirm Your I-140 Approval Status and Date

Gather your I-797 approval notice and verify that your I-140 was approved more than 180 days before your last day of employment. If you are unsure, contact your former employer's immigration attorney — they are typically required to provide you with copies of your immigration documents.

2. Secure Your 60-Day Grace Period

H-1B holders receive a 60-day grace period after termination of employment. During this window, you maintain valid status and can transfer your H-1B to a new employer, change to another status, or make arrangements to depart. This clock starts on your last day of employment, not the day you receive notice.

3. Find a New Employer Willing to Sponsor

Your new employer will need to:

• File a new H-1B transfer petition (to maintain your work authorization)
• Begin a new PERM labor certification process for your green card
• File a new I-140, which will capture your old priority date

The new I-140 does not need to be in the same EB category. If your old I-140 was EB-3 and your new role qualifies for EB-2, you can port the EB-3 priority date to the EB-2 petition — a significant advantage for workers in backlogged categories.

4. Inform Your New Immigration Attorney

Make sure your new attorney knows about your existing I-140 approval and priority date. They will need the receipt number, approval date, and priority date to properly request portability on the new I-140 filing.

Yes — and this is one of the most powerful aspects of i140 portability h1b rules. Your priority date is not permanently tied to the EB category of the original petition.

Common scenarios include:

• **EB-3 to EB-2 upgrade:** If your new position qualifies for EB-2 (typically requiring a master's degree or bachelor's plus five years of progressive experience), you can file a new I-140 under EB-2 and retain your earlier EB-3 priority date. For Indian nationals, this can potentially save years of waiting.
• **EB-2 to EB-3 downgrade:** In some cases, the EB-3 category may have faster movement than EB-2 for certain countries. You can port an EB-2 priority date to a new EB-3 filing.
• **Same category, different employer:** The most straightforward scenario — same EB category, new employer, same priority date.

The key requirement is that the original I-140 must have been approved and remained valid for at least 180 days. The new petition is evaluated independently on its own merits, but the old priority date carries over.

If you had already filed an I-485 (adjustment of status) and it had been pending for 180 days or more at the time of your layoff, you have additional protections under AC21 portability.

Under AC21 § 106(c):

• Your I-485 **cannot be denied solely because your employer withdrew the I-140** or because you changed jobs
• You must move to a new position in the **same or similar occupational classification** as the one listed on your original I-140
• You should file a job portability letter or amended I-485 supplement J with USCIS to document the change

This is a separate but related protection to I-140 portability. If your I-485 was pending for fewer than 180 days, the withdrawal of the underlying I-140 can result in denial of the adjustment application.

Can You Use Employment Authorization (EAD) During This Transition?

If you have a valid EAD card based on your pending I-485, you can use it to work for any employer. This provides more flexibility than the H-1B, which ties you to a specific employer. Many workers in this situation choose to use their EAD rather than transferring the H-1B.

Here is a realistic timeline for preserving your priority date after a layoff:

• **Week 1:** Gather all immigration documents, confirm I-140 status, consult with an immigration attorney
• **Weeks 1–4:** Job search with focus on employers willing to sponsor H-1B and green card
• **Weeks 2–6:** New employer files H-1B transfer to maintain work authorization
• **Months 2–8:** New employer begins PERM process for green card sponsorship
• **Months 8–14:** New I-140 filed with request to port previous priority date

The PERM process is typically the longest part — it involves prevailing wage determination, recruitment, and filing with the Department of Labor. Some employers may already have PERM-ready positions that can shorten this timeline.

Cost Considerations

Most employers cover immigration filing costs, but it is worth discussing early in the hiring process. The total cost of a new PERM and I-140 can range from $8,000 to $15,000 in legal and government fees. Some employers may ask you to wait until after a probationary period before initiating green card sponsorship.

Protecting your priority date requires attention to detail. Avoid these common errors:

• **Not keeping copies of your I-797 and other immigration documents.** Your employer is not required to store these indefinitely after you leave. Keep personal copies of everything.
• **Assuming your priority date is automatically transferred.** Your new attorney must explicitly request the priority date on the new I-140. It does not happen automatically.
• **Waiting too long to act.** The 60-day grace period is firm. If you fall out of status, your options become significantly more limited.
• **Accepting a position that does not match EB category requirements.** If you are trying to upgrade from EB-3 to EB-2, make sure the new position genuinely requires the higher qualifications. USCIS audits these filings.
• **Ignoring the PERM timeline.** Even with a preserved priority date, you still need a new PERM approval before the new I-140 can be filed. Start this process as early as possible with your new employer.