PDA

View Full Version : Lawyers Priority Date Transfer advice, pls. help


java4yogi
02-17-2010, 05:39 PM
Hi Gurus,

I really needed your help on this one.

I have an EB3 I-140 approved with Priority Date of Jan 2003.
I recently got my EB2 Perm approved with Priority Date Jan 2009 and now I am planning to get my I-140 filed. I am working with the same company from the beginning.

My lawyer told me that we can go for Premium Processing of I-140, instead of regular processing. I will not be charged for this, my company will pay.

However they said that we should go for Priority Date Transfer from EB3 to EB2 at I-1485 stage and not at I-140 stage.

Could somebody pls pls. advise if this is the correct way to go about it. I missed the concurrent filing way back in 2007 and have been stuck in this boat for so long..

Thanks to all of you for your advice and time in reading this query.

imneedy
02-17-2010, 07:05 PM
Is your lawyer from NY.. Midtown?:confused:

roseball
02-17-2010, 08:23 PM
Hi Gurus,

I really needed your help on this one.

I have an EB3 I-140 approved with Priority Date of Jan 2003.
I recently got my EB2 Perm approved with Priority Date Jan 2009 and now I am planning to get my I-140 filed. I am working with the same company from the beginning.

My lawyer told me that we can go for Premium Processing of I-140, instead of regular processing. I will not be charged for this, my company will pay.

However they said that we should go for Priority Date Transfer from EB3 to EB2 at I-1485 stage and not at I-140 stage.

Could somebody pls pls. advise if this is the correct way to go about it. I missed the concurrent filing way back in 2007 and have been stuck in this boat for so long..

Thanks to all of you for your advice and time in reading this query.

The best thing to do is to file your EB-2 based I-140 with a request to port your Eb-3 PD so you could get your EB-2 approved with Jan 2003 PD. If not, you will get EB-2 approved with Jan 2009 PD, and it wont be easy to apply I-485 as your Eb-2 nor EB-3 dates would be current. Unless your lawyer wants to go through the extra effort to provide documentation and requests USCIS to accept I-485 based on earlier PD though EB-2 PD is not current. Why not just make it simple and capture your old PD when you are still getting ready to file for EB-2 I-140? In my view, capturing old PD in EB-2 I-140 would be ideal, unless your lawyer has a better explanation on why he wants to port PD during I-485.

imneedy
02-17-2010, 09:10 PM
The best thing to do is to file your EB-2 based I-140 with a request to port your Eb-3 PD so you could get your EB-2 approved with Jan 2003 PD. If not, you will get EB-2 approved with Jan 2009 PD, and it wont be easy to apply I-485 as your Eb-2 nor EB-3 dates would be current. Unless your lawyer wants to go through the extra effort to provide documentation and requests USCIS to accept I-485 based on earlier PD though EB-2 PD is not current. Why not just make it simple and capture your old PD when you are still getting ready to file for EB-2 I-140? In my view, capturing old PD in EB-2 I-140 would be ideal, unless your lawyer has a better explanation on why he wants to port PD during I-485.

Is this standard? My lawyer said if both EB2 and EB3 are from same employer, it is safe to do at I-485 stage (don't know the rationale behind it :mad:).

Any reference USCIS memo or document clarifying this will be helpful.

Thanks

Rb_newsletter
02-17-2010, 10:15 PM
Why not just make it simple and capture your old PD when you are still getting ready to file for EB-2 I-140?


Yes I agree with roseball.

Hi Gurus,

However they said that we should go for Priority Date Transfer from EB3 to EB2 at I-1485 stage and not at I-140 stage.


Don't accept for this. Ask your lawyer to port the priority date NOW at I140 stage. If he doesn't accept just change your attorney if possible.

Roger Binny
02-18-2010, 07:38 AM
Yes, i agree with roseball i had enough research on this and know one success story which they did at 140 stage.

Check this link http://www.murthy.com/chatlogs/ch090409_P.html, search for porting.

pd_recapturing
02-18-2010, 08:42 AM
To OP,
I have gone through this whole PD recapturing business. You MUST try to port your PD in EB2 I-140 application stage. If it does not happen, dont worry. You can send interfiling (relink) request to USCIS to link new 140 and better PD to your existing 485. If you get the desired PD in EB2 140s stage, things will be a lot easier for you. I have seen tons of ppl getting successful approval of 485 in similar cases. If you need more help, send me a PM. btw, I got my GC approved in Sep 2009. Check my posts in immigrationVoice archives.

imneedy
02-18-2010, 09:45 AM
Still looking for any memo from USCIS

cinqsit
02-18-2010, 10:19 AM
I dont know of any memo on this but roseball and pd_recapturing are correct if
the request is made when applying for the new I-140 things get easier.

The lawyer has to fill up only one form (I-824? not sure) and write a brief letter
to make a request to assign earlier PD to your new I-140. Also make sure
he uses your A number from your I-485. Thats how they group all your I-140s
together with your 485.

Your new I-140 approval will have your earlier PD when you make this request.

You can research on the forums I have seen people on this forum to through unecessary pain when their lawyer did NOT request earlier PD because going back and asking USCIS to assign your new I-140 the earlier PD and adjudicating your I-485 based on that is a herculean task and especially irritating when you know
you are current.

cinqsit

roseball
02-18-2010, 11:00 AM
I dont know of any memo on this but roseball and pd_recapturing are correct if
the request is made when applying for the new I-140 things get easier.

The lawyer has to fill up only one form (I-824? not sure) and write a brief letter
to make a request to assign earlier PD to your new I-140. Also make sure
he uses your A number from your I-485. Thats how they group all your I-140s
together with your 485.

Your new I-140 approval will have your earlier PD when you make this request.

You can research on the forums I have seen people on this forum to through unecessary pain when their lawyer did NOT request earlier PD because going back and asking USCIS to assign your new I-140 the earlier PD and adjudicating your I-485 based on that is a herculean task and especially irritating when you know
you are current.

cinqsit

The OP has not even filed the I-485 yet. Therefore, it only makes sense to capture the old PD during I-140 stage. I am not sure how his/her lawyer is planning to file I-485 if the old PD is not captured as priority dates won't be current otherwise and the I-485 application won't even be accepted. Unless, the receipting folks at USCIS go through both the I-140 approvals and accept the application in EB-2 based on older PD from earlier approved I-140..Which I really doubt and not sure if they will do so...

kondur_007
02-18-2010, 11:43 AM
Is this standard? My lawyer said if both EB2 and EB3 are from same employer, it is safe to do at I-485 stage (don't know the rationale behind it :mad:).

Any reference USCIS memo or document clarifying this will be helpful.

Thanks

My 2 cens are as follows:

1. I agree with most of the people who are saying that it is much better to port at I 140 stage and in that case you wont have to deal with it later; the rest of your GC process will be a breeze and chances are, you will get your GC in next 2-3 months.

2. However, the details in every individual case are different and especially it is the porting in the same company, the decision needs to be made by a good attorney who has all the details of EB3 and EB2 PERMs.
It is possible that your lawyer does not want to draw attention to EB3 case at all and get EB2 I 140 approved first and then deal with the PD. This may be the best way to go based on the details of your case.

Bottomline: There is no generalization that can be applied to every single case. Do not blindly follow advise of people like me who does not have a clue about details of your EB3 and EB2 PERMs. If you are not sure about the advise of your lawyer, have it evaluated by another lawyer; but largely the decision depends on many factors including details of both your cases.

Good Luck.

java4yogi
02-18-2010, 02:20 PM
Is your lawyer from NY.. Midtown?:confused:

Nope :) I guess got lucky there..

java4yogi
02-18-2010, 02:27 PM
Thanks really for all the replies, I had searched a lot of forum threads but was not sure why my lawyer was suggesting this approach.
And based on all the feedback here from the gurus, I have sent in a request to my lawyer for these questions, hopefully I hear back soon.

The only possible thing I can think of is that the lawyer said that I should go for Premium Processing of I-140 so that we can get early approval and then can apply for I-1485. My 485 was never applied for my EB3 case.

Is that a possibility that they do not want to do Priority Date Transfer to avoid issues at that time when we go for Premium Processing.

The only thing is this waiting and missing the last concurrent filing in 2007 has been a big disaster and I really really hope that something good happens..

Congrats on getting your GC in 2009 :)

To OP,
I have gone through this whole PD recapturing business. You MUST try to port your PD in EB2 I-140 application stage. If it does not happen, dont worry. You can send interfiling (relink) request to USCIS to link new 140 and better PD to your existing 485. If you get the desired PD in EB2 140s stage, things will be a lot easier for you. I have seen tons of ppl getting successful approval of 485 in similar cases. If you need more help, send me a PM. btw, I got my GC approved in Sep 2009. Check my posts in immigrationVoice archives.

roseball
02-18-2010, 02:42 PM
Thanks really for all the replies, I had searched a lot of forum threads but was not sure why my lawyer was suggesting this approach.
And based on all the feedback here from the gurus, I have sent in a request to my lawyer for these questions, hopefully I hear back soon.

The only possible thing I can think of is that the lawyer said that I should go for Premium Processing of I-140 so that we can get early approval and then can apply for I-1485. My 485 was never applied for my EB3 case.

Is that a possibility that they do not want to do Priority Date Transfer to avoid issues at that time when we go for Premium Processing.

The only thing is this waiting and missing the last concurrent filing in 2007 has been a big disaster and I really really hope that something good happens..

Congrats on getting your GC in 2009 :)

Applying I-140 in premium processing does not have anything to do with porting your older PD.

Question to ask your attorney would be on what basis do they intend to file your I-485 since none of the PDs from approved I-140s would be current for you if they are not planning to port your earlier EB-3 I-140 PD while filing EB-2 I-140.

desi3933
02-18-2010, 03:12 PM
Applying I-140 in premium processing does not have anything to do with porting your older PD.

Question to ask your attorney would be on what basis do they intend to file your I-485 since none of the PDs from approved I-140s would be current for you if they are not planning to port your earlier EB-3 I-140 PD while filing EB-2 I-140.

This should not matter, since one can file I-485 based on earliest PD and any I-140 category if the beneficiary has multiple approved I-140 petitions.

However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing.


___________________________
Not a legal advice.
US citizen of Indian origin

java4yogi
02-18-2010, 03:38 PM
The lawyers have not said anything about applying for the 485 currently. They have only mentioned that they are going to file for I-140 under Premium Processing.

I did not know about this option which was mentioned below, is this really possible
<--
However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing
-->




This should not matter, since one can file I-485 based on earliest PD and any I-140 category if the beneficiary has multiple approved I-140 petitions.

However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing.


___________________________
Not a legal advice.
US citizen of Indian origin

desi3933
02-18-2010, 04:04 PM
......

I did not know about this option which was mentioned below, is this really possible
<--
However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing
-->

Why not? PD porting is allowed and if the reclaimed PD is current, then I-485 can be filed along with I-140. Of course, this will need explanation in cover letter.

I suggest that you check with your attorney.

___________________________
Not a legal advice.
US citizen of Indian origin

kondur_007
02-18-2010, 04:15 PM
The lawyers have not said anything about applying for the 485 currently. They have only mentioned that they are going to file for I-140 under Premium Processing.

I did not know about this option which was mentioned below, is this really possible
<--
However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing
-->

Yes, he is absolutely right and it surely is POSSIBLE to do. Question is: Is it advisable to do so in YOUR case?

As he mentioned in above post, it will need explanation cover letter.

My feeling is this: Your attorney wants to "keep things simple" and get EB2 I 140 approved in 3-4 weeks total with Premium processing.

Then he can deal with cover letter etc at 485 filing stage.

But again, as I mentioned in my first post: lot depends on the details of your EB3 and EB2 cases.

(By the way: I disagree with some suggestions from other people about "neither I 140s would be current" : desi3933 is correct here. You can use the PD of old I 140 and apply 485 under category of new I 140. So once your EB2 I 140 is approved, you will be current and will be able to apply 485 right away)

java4yogi
02-18-2010, 04:20 PM
I also think now its quite possible that the attorney wants to keep things simple.

I just now spoke to them based on all the feedback I got from IV members, they are open to suggestions but not looking forward to views in forums. They said that they can try but porting might not happen at I-140 time. They mentioned that in previous cases, they have used porting at 485 time. I even mentioned that Murthy has this listed on their website but they are looking for uscis memos or faqs where it talks about Priority date transfer..:confused:

I am really looking into finding these links or memos but just in case anybody has any links on USCIS etc which talks about PD transfer, could you pls. pls. post it in this forum. I am also going to try looking in other threads on IV.

Thanks everyone sooo much !

Yes, he is absolutely right and it surely is POSSIBLE to do. Question is: Is it advisable to do so in YOUR case?

As he mentioned in above post, it will need explanation cover letter.

My feeling is this: Your attorney wants to "keep things simple" and get EB2 I 140 approved in 3-4 weeks total with Premium processing.

Then he can deal with cover letter etc at 485 filing stage.

But again, as I mentioned in my first post: lot depends on the details of your EB3 and EB2 cases.

(By the way: I disagree with some suggestions from other people about "neither I 140s would be current" : desi3933 is correct here. You can use the PD of old I 140 and apply 485 under category of new I 140)

desi3933
02-18-2010, 04:32 PM
Yes, he is absolutely right and it surely is POSSIBLE to do. Question is: Is it advisable to do so in YOUR case?

As he mentioned in above post, it will need explanation cover letter.

....

PD porting is a common request and therefore, in my opinion, cover letter with request for pd porting is not a big deal.

So far, I have not seen any good reason not to request earlier pd with I-140 filing. In fact, more explanation is needed if two I-140 have different dates and request is made to capture old pd at the time of filing I-485. There have been cases where mailroom has (incorrectly) rejected I-485 filing and people have to send I-485 again.

I would suggest OP to get second professional opinion.


___________________________
Not a legal advice.
US citizen of Indian origin

java4yogi
02-19-2010, 01:49 PM
Hi,

I completely agree with your opinion and am going to follow through with it further.

I searched through some of the old threads on IV, somehow with the USCIS website change, a lot of them errored out.

Could someone pls. let me know if there is any USCIS memo link where the cover letter option is mentioned. I am searching on USCIS Home Page (http://www.uscis.gov) but am unable to find any memo/links where it talks about this cover letter option for putting in request for porting of I-140.

I really would appreciate any help in this regard..Thanks so much !!

PD porting is a common request and therefore, in my opinion, cover letter with request for pd porting is not a big deal.

So far, I have not seen any good reason not to request earlier pd with I-140 filing. In fact, more explanation is needed if two I-140 have different dates and request is made to capture old pd at the time of filing I-485. There have been cases where mailroom has (incorrectly) rejected I-485 filing and people have to send I-485 again.

I would suggest OP to get second professional opinion.


___________________________
Not a legal advice.
US citizen of Indian origin

java4yogi
02-19-2010, 02:52 PM
I did find a link which folks can use for talking to their attorneys, Question 5 there

USCIS - Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Worker (http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfe8745543256210VgnVCM100000082ca60aRCR D&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190a RCRD)

However I am still unable to reach the final destination - See 8 C.F.R. 204.5(e)

any ideas :)

Hi,

I completely agree with your opinion and am going to follow through with it further.

I searched through some of the old threads on IV, somehow with the USCIS website change, a lot of them errored out.

Could someone pls. let me know if there is any USCIS memo link where the cover letter option is mentioned. I am searching on USCIS Home Page (http://www.uscis.gov) but am unable to find any memo/links where it talks about this cover letter option for putting in request for porting of I-140.

I really would appreciate any help in this regard..Thanks so much !!

desi3933
02-19-2010, 04:15 PM
.....

However I am still unable to reach the final destination - See 8 C.F.R. 204.5(e)

any ideas


http://www.state.gov/documents/organization/87866.pdf


___________________________
Not a legal advice.
US citizen of Indian origin

java4yogi
02-19-2010, 05:55 PM
Thank You !
really would not have been able to locate it ...

http://www.state.gov/documents/organization/87866.pdf


___________________________
Not a legal advice.
US citizen of Indian origin

desi3933
02-19-2010, 06:05 PM
8 CFR 204.5(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

Page 2
http://edocket.access.gpo.gov/cfr_2002/janqtr/pdf/8cfr204.5.pdf


___________________________
Not a legal advice.

cecvec
03-05-2010, 11:00 PM
This should not matter, since one can file I-485 based on earliest PD and any I-140 category if the beneficiary has multiple approved I-140 petitions.

However, having said that, it is prudent to request re-capture of old priority date (aka PD porting) at the time of filing for new I-140. Infact, along with I-140 petition, I-485 application can also be filed, if based on previous PD, it is current at the time of filing.


___________________________
Not a legal advice.
US citizen of Indian origin

Incase if the recapture is not done, and one has two approved I 140's (Eb3,Eb2) .. Can we file I 485 using the Oldest priority date (eb3)and highest classic (eb2) ??