Once your I-140 is approved, you generally keep your priority date even if you later move to a new employer. A new employer must file a new PERM and a new I-140, but your place in line can stay the same, unless the original approval is revoked for fraud, willful misrepresentation, material error, or a problem with the labor certification.
If you are in the EB-3 process, one question matters more than most: what happens to your place in line if your job falls through? This guide explains what you keep after your I-140 is approved, what you lose before it is approved, and the few situations where an approved I-140 stops protecting you.
The rule comes from a federal regulation, 8 CFR 204.5(e), and it is explained in the USCIS Policy Manual. We use both as our sources throughout this article.
Here is the quick answer for the most common situations:
| Situation | Do you keep your priority date? |
|---|---|
| Your I-140 is approved and your employer withdraws it less than 180 days later | Yes |
| Your I-140 is approved and your employer withdraws it 180 days or more later | Yes |
| Your I-140 is approved and your employer goes out of business | Yes |
| The approval is revoked for fraud, misrepresentation, material error, or a PERM problem | No |
| Your I-140 is still pending, or only your PERM is certified | No, except in successor-in-interest cases |
Why Your Priority Date Is So Valuable
Your priority date is your place in line for a green card. For most EB-3 cases, it is the date your employer filed your PERM labor certification with the U.S. Department of Labor (DOL).
Each month, the State Department publishes the Visa Bulletin, which shows which priority dates can move forward. You can only take the final green card step when your priority date is “current,” meaning it is earlier than the date listed for your category and country.
For a full explanation, see our guide to priority dates and your place in the visa queue.
The EB-3 process often takes around four years from start to finish. A large part of that time is waiting for your priority date to become current.
That is why your priority date matters so much. If you had to start over with a new date, you could move to the back of the line and add years to your wait.
What an Approved I-140 Gives You
The I-140 is the Immigrant Petition for Alien Worker. Your employer files it with U.S. Citizenship and Immigration Services (USCIS) after DOL certifies the PERM.
There is a big difference between a pending I-140 and an approved one. While the I-140 is pending, your priority date depends on that case moving forward.
Once USCIS approves the I-140, the rules change in your favor. From that point on, the priority date generally belongs to you for future EB-1, EB-2, and EB-3 petitions, not only to the employer who filed for you.
You will receive a Form I-797 approval notice when the I-140 is approved. This document shows your receipt number, the category, and your priority date, so keep it somewhere safe.
The Rule: 8 CFR 204.5(e) in Plain Language
The regulation at 8 CFR 204.5(e) is often called the priority date retention rule. “Retention” simply means keeping your date.
In plain language, the rule says:
- An approved petition gives you its priority date. If you have an approved EB-1, EB-2, or EB-3 petition, you can use its priority date for any later EB-1, EB-2, or EB-3 petition you qualify for.
- A different employer can use your date. The USCIS Policy Manual says retention includes cases where the petitioner (the employer) has changed.
- The earliest date wins. If you have more than one approved petition in these categories, you are entitled to the earliest priority date.
- The date belongs only to you. You cannot give or transfer your priority date to another person.
This protection starts when the I-140 is approved. It does not depend on how long you worked for the first employer, or whether you ever worked for them at all.
How It Works When You Change Employers After I-140 Approval
Keeping your priority date does not mean you can simply move to any job. A new employer still has to sponsor you for the new job from the beginning.
Here is how the process usually works:
- The new employer makes a job offer. The job must be a real, full-time, permanent position that qualifies for EB-3 (or EB-2 or EB-1).
- The new employer files a new PERM. The USCIS Policy Manual says the new employer must get a new labor certification if the category requires one, and EB-3 does. The new employer goes through recruitment and DOL review again.
- The new employer files a new I-140. This petition is for the new job. The attorney typically includes a copy of your earlier I-797 approval notice and asks USCIS to apply your earlier priority date.
- USCIS approves the new I-140 with your earlier date. If the new approval notice shows the wrong date, the attorney can ask USCIS to correct it.
- You wait for your earlier date to become current. Your place in line is based on the old date, not the date of the new PERM.
A Worked Example
Here is a simple example to show how the timeline works:
- 2022: Employer A files a PERM for Maria. Her priority date is set in 2022.
- 2023: Employer A’s I-140 for Maria is approved.
- 2024: Employer A closes its business before Maria’s priority date is current.
- 2025: Employer B offers Maria a new EB-3 job and files a new PERM.
- 2026: Employer B’s I-140 is approved, and USCIS applies Maria’s 2022 priority date.
Without the retention rule, Maria’s priority date would have been 2025. With it, she keeps her 2022 place in line.
What Retention Does Not Do
Retention saves your place in line, but it does not skip the new employer’s paperwork. The new PERM and new I-140 still take time to process.
If your old date is already current by the time the new I-140 is approved, you may be able to move to the final step right away. If your old date is not current yet, you keep waiting, but from your earlier position.
What Happens If Your Employer Withdraws the I-140
Employers can ask USCIS to withdraw an I-140 at any time. This sometimes happens when a worker decides not to take the job, or when the employer changes its plans.
Many websites say you only keep your priority date if the I-140 was approved for 180 days before the withdrawal. That is not what current USCIS policy says.
The 180-day rule controls whether the I-140 itself stays approved:
- If the employer withdraws less than 180 days after approval, USCIS automatically revokes the I-140 approval.
- If the employer withdraws 180 days or more after approval, the I-140 stays approved. The same applies if your I-485 green card application has been pending for 180 days or more.
Your priority date follows a separate rule. In both situations above, you generally keep the priority date, as long as the I-140 was not revoked for one of the reasons in the next section.
The same protection applies if your employer goes out of business. A business closing works like a withdrawal under these rules.
Why the 180 Days Still Matters for Some Workers
For workers abroad, the main question is usually the priority date, and that is protected after approval. For some workers already in the United States, whether the I-140 itself stays approved can matter for other benefits.
We cover that briefly in the section on workers in the U.S. below. If you are in that situation, talk to an immigration attorney about your specific case.
When You Can Lose Your Priority Date
The protection is strong, but it is not unlimited. You can lose the priority date from an approved I-140 if USCIS revokes the approval for one of these reasons:
- Fraud or willful misrepresentation. This means someone knowingly gave false information to the government, such as fake work experience or a job that did not really exist.
- DOL revokes the PERM. If the Department of Labor cancels the labor certification behind your I-140, the priority date that came from it is lost.
- USCIS or the State Department invalidates the PERM. This can happen if the labor certification is found to be invalid, for example because of serious problems with the job or the application.
- Material error. USCIS may decide it should never have approved the petition, for example because you did not meet the job’s requirements.
Notice what these reasons have in common. They are about problems with the original case itself, not about you changing jobs.
How to Protect Yourself
The best protection is accurate information at every step. Make sure every experience letter is true, every date is correct, and every answer to the government is honest.
If something in your original case was wrong, it can come back later and take your priority date with it. This is true even if a different employer files your new case.
Before Approval: Why a Pending PERM Does Not Protect You
People often search for advice on changing jobs during the PERM process. The answer is very different before the I-140 is approved.
If you leave before your I-140 is approved, you usually have no priority date to carry forward. A certified PERM by itself does not give you a priority date for a new employer’s case.
This means:
- If your PERM is still pending, changing employers usually means starting over with a new priority date.
- If your PERM is certified but the I-140 is not yet filed or approved, you also usually lose the old date if you move to a new employer.
- If your I-140 is pending, you are not protected yet. If the employer withdraws or the I-140 is denied, there is no approved petition for you to keep a date from.
The only general exception is a true successor-in-interest, where a new company takes over your employer’s business and the same job. That is a special situation, and an attorney should review it.
So if you are thinking about changing jobs, timing matters. Waiting until your I-140 is approved can protect years of time already spent in line.
Moving Between EB-3, EB-2, and EB-1
The retention rule works across the three main employment-based categories. A priority date from an approved EB-3 petition can be used for a later EB-2 or EB-1 petition, and the other way around.
This also applies inside EB-3. EB-3 has two main groups:
- Skilled workers and professionals, for jobs that need at least two years of training or experience, or a bachelor’s degree.
- Other workers, for jobs that need less than two years of training or experience.
Both groups are part of the same EB-3 section of the law. That means a priority date from an approved EB-3 petition in one group can generally be used for a later EB-3 petition in the other.
Keep in mind that each category and group has its own line in the Visa Bulletin. The same priority date can be current in one category and not current in another.
Workers Abroad vs. Workers Already in the U.S.
If You Are Outside the United States
Most EB-3 workers finish the process through consular processing. This means the final step is an immigrant visa interview at a U.S. embassy or consulate in your home country.
For you, the priority date is the key protection. If your first employer backs out after your I-140 is approved, a new employer can sponsor you and your new case can move forward based on your earlier date.
If You Are Already in the United States
Some workers live in the U.S. and file an I-485 to adjust status. There is a separate rule for them, often called job portability, which comes from a law known as AC21.
Under job portability, if your I-485 has been pending for 180 days or more, you may be able to move to a new job in the same or a similar occupation without a new PERM or I-140. This uses a form called Supplement J.
Job portability and priority date retention are two different tools. Retention keeps your place in line, while portability can let you keep your existing case moving with a new job, so ask an attorney which one applies to you.
Practical Steps to Protect Your Priority Date
You can take a few simple steps now to make a future job change easier:
- Keep your I-797 approval notice. Save a paper copy and a digital copy in a safe place.
- Write down your key details. Note your I-140 receipt number, your priority date, and your category.
- Give these details to a new employer early. The new employer’s attorney needs them to request your earlier date on the new I-140.
- Keep your documents accurate. Make sure your experience letters and personal information match across every form.
- Think about timing. If you can, wait until your I-140 is approved before you leave a sponsoring employer.
- Check the Visa Bulletin. Follow your category and country each month so you know how close your date is to current.
For a full overview of each stage, from PERM to I-140 to the final interview, see the EB-3 process.
Frequently Asked Questions
Can I change employers after my I-140 is approved?
Yes, you can change employers after your I-140 is approved, but the new employer must file a new PERM and a new I-140 for the new job. Your earlier priority date can be applied to the new petition, so you generally keep your place in line.
Do I keep my priority date if my employer withdraws my I-140?
Generally, yes, if the I-140 was approved before the withdrawal, because current USCIS policy lets you keep the priority date unless the approval is revoked for fraud, willful misrepresentation, material error, or a problem with the labor certification. The 180-day rule affects whether the I-140 itself stays approved, not whether you keep the date.
Does the new employer have to start PERM over?
Yes, the USCIS Policy Manual says a new employer must get a new labor certification if the category requires one, and EB-3 does. Your priority date carries over, but the PERM and I-140 do not.
What if my employer goes out of business?
If your I-140 was approved before the business closed, you generally keep your priority date. A new employer can sponsor you with a new PERM and I-140 and ask USCIS to apply your earlier date.
Can I use my EB-3 priority date for an EB-2 petition?
Yes, the retention rule covers EB-1, EB-2, and EB-3, so an approved EB-3 priority date can be used for a later EB-2 petition you qualify for. Each category has its own Visa Bulletin line, so the date may move differently in each one.
Can I keep my priority date if my PERM was approved but my I-140 wasn’t?
Usually not, because the retention rule depends on an approved I-140, so a certified PERM alone does not give you a priority date to carry to a new employer. The main exception is a true successor-in-interest situation, where a new company takes over the same business and job.
Final Thoughts
An approved I-140 does more than move your current case forward. Under 8 CFR 204.5(e), it generally gives you a priority date you can keep for future EB-1, EB-2, and EB-3 petitions, even with a different employer.
If you change employers, the new employer must file a new PERM and a new I-140. Your place in line, however, can stay based on your original date.
An employer withdrawal or a business closing does not usually take that date away. The 180-day rule affects whether the I-140 itself stays approved, not whether you keep the priority date.
You can lose the date if the approval is revoked for fraud, willful misrepresentation, material error, or a problem with the labor certification. Before your I-140 is approved, there is usually no date to carry forward, so timing and accurate documents are your best protection.
