I am a Chinese national with an H-1B visa. My EB-3 I-140 was approved with a priority date in November 2018. My six-year H-1B visa is going to expire in December 2020. Meanwhile, I have an approved I-526 application with a priority date in November 2014. I am about to file my I-485 under EB-5. I am wondering what happens to my EB-3 case if an EB-5-based conditional green card is granted. If I automatically lose my EB-3 priority date, will I be able to get it back if my I-829 gets denied?
If your EB-5 conditional green card is granted, you can still keep the EB-3, assuming you have not withdrawn the underlying I-140. If for any reason the eventual I-829 you filed pursuant to the EB-5 is denied, you can pursue the EB-3.
Your EB-3 priority date remains and could be a backup plan if you need one later provide the employer is ready to sponsor you, or if you file another immigrant petition under EB-1/2 or 3.
Even if your I-829 is denied, you should not lose your priority date on the EB-3. Just make sure not to withdraw the I-140 you filed based on your EB-3 application until your two-year conditional green card is replaced with the 10-year permanent green card.
If the priority date was achieved after your conditional residency was approved, it should be valid. The new EB-5 rules going into effect on Nov. 21, 2019, have some language relating to retention of priority dates as well that you should check.
Your I-140 approval stays valid (and priority date maintained) as long as the petitioner has not withdrawn the petition.
Normally once a green card is approved, the remaining applications are withdrawn or cancelled. In your case, I will as your lawyer to work with the USCIS to keep you EB-3 case pending until you receive the permanent green card based on the EB-5.
