Priority Date Porting After Layoff: EB-3 Case Analysis

An EB-3 applicant with an approved PERM and I-140 from 2016 was laid off in 2024 and is now navigating the complex process of porting their priority date to a new employer. Despite the new employer agreeing to file a new PERM and port the January 2016 priority date, the process was delayed when the company entered a 'cooling-off period' following internal layoffs in late 2025, pushing the labor market test start to mid-2026. The applicant, a Canadian citizen born in India, is currently maintaining H-1B status through the new employer. Under AC21 provisions, their H-1B can be extended beyond the standard six-year cap because they hold an approved I-140 that has been valid for more than 180 days — a key protection in situations like this. The core concern is timing: if the EB-3 India priority date becomes current before the new PERM and I-140 are approved, the applicant cannot adjust status without an active, approved petition from the sponsoring employer. Priority date porting only becomes available after the new I-140 is approved and the applicant has waited 180 days in an eligible status. For Indian-born EB-3 applicants, the priority date backlog has been historically long, but recent Visa Bulletin movement has varied. Applicants in this situation are advised to consult with an independent immigration attorney — separate from the employer's counsel — to evaluate options such as self-petitioning (EB-1A/NIW if eligible), or exploring whether the current employer can expedite the PERM process once the cooling-off period ends. This case highlights the vulnerability of employer-sponsored green card applicants to corporate decisions beyond their control, particularly those in the final stages of a decade-long process.