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If your EB-5 conditional green card is granted, you can still keep the EB-3, assuming you have not withdrawn the underlying I-140.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.
Normally once a green card is approved, the remaining applications are withdrawn or cancelled.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.
Your I-140 approval stays valid (and priority date maintained) as long as the petitioner has not withdrawn the petition.
You have an argument under the new regulations.
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.
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