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bhasky25
10-11-2010, 01:45 PM
Hello guys,

I need a clarification on the process. Here is my scenario

1. PD : Feb 2004 EB3 India
2. 485 : Filed during july 2007
3. 140 : Approved on jan 2009 --> Revoked by my previous company on 12/23/2009
4. AC21 : Used AC21 to change jobs in Feb 2009. Transferred job using H1B tranfer and got it for 3 years(valid until Jan 2012). Changed jobs after 500 days of applying 485.
5. EAD and Ap is not valid(did not renew it as I chose to maintain H1b). I let it expire in 2008.
6. The new company would not file for EB2 as my current job description does not qualify for EB2. They are willing to refile EB3 petition. I was not interested in doing it.

My question is:

If I want to get my H1b renewed again @ Jan 2012, it is possible to get it renewed for 3 years by using my previous 140 approval even though it is revoked by my previous employer ?? If that is not possible, what are my options to maintain my H1B.

Appreciate your insight.

saketkapur
10-11-2010, 02:00 PM
I would suggest you talk to a good immigration attorney or post your query in "Ask the Lawyer Section".
Just some clarification....so you still have a valid H1B until 2012, I would suggest that you should apply for EAD/AP asap and start using the same rather than just depend on H1B...if that is possible.....

PS:I am not an attorney so this suggestion should not be considered legal advice...every case is different.......talk to an immigration attorney

bhasky25
10-11-2010, 02:06 PM
Thank you for responding,

I had changed jobs under AC21 provisions ( changed almost after 500 days of filing 485) and preferred to maintain my H1B as I did not want to get into the complications of renewing EAD and AP and also my wife goes to school here and it was safer for her to be on H1b rather than EAD or F1. I am just not comfortable with renewal process of EAD and AP. I have my H1B visa stamped... so now, I can travel at my will instead of worrying about what will happen at port of entry as I have a stable job and H1B stamped.

I want to know if I will still be eligible for H1B renewal(based on approved 140) even after my 140 being revoked. I do have a copy of my 140 approval.

rajenk
10-11-2010, 02:11 PM
Consult with your current company immigration attorney and find out why your current job will not qualify for EB2.

Just in case start your EB3 GC and port your PD to this new GC I-140. That will help you with the H1B renewal for 3 years. You have got 14 more months. you should be able to get I-140 filed by then, do a premium for I-140 to get it approved by the time you renew your H1B.

Renewing your H1B based on the revoked I-140 would be risky.

bigboy007
10-11-2010, 02:31 PM
Consult with your current company immigration attorney and find out why your current job will not qualify for EB2.

Just in case start your EB3 GC and port your PD to this new GC I-140. That will help you with the H1B renewal for 3 years. You have got 14 more months. you should be able to get I-140 filed by then, do a premium for I-140 to get it approved by the time you renew your H1B.

Renewing your H1B based on the revoked I-140 would be risky.
Did USCIS sent you any notice that your 485 is not valid ?

bhasky25
10-11-2010, 02:39 PM
I received and RFE for medical and 325a in June 2009 and nothing after that. I replied to the RFE along with my AC21 from the current employer.

My current employer will not file an EB2 petition. Period. Not sure if it is an good idea to file an EB3 through them as it will not take me anywhere. I would rather switch to EAD and look for an employer who would do EB2 for me. But that would be my last option, I still want to work for this employer under H1b. But wanted to know if there will be any problem in getting my H1B renewed as my 140 is revoked. I am past my 6 yrs in H1B (got the previous one approved using my 140 approval).

saileshdude
10-11-2010, 02:47 PM
First of all let me ask why you are trying to refile your LC and I-140 when you used AC21 and had filed AOS in July 2007. If your answer is just to renew H1 then that's really not worth. You could technically just renew H-1B based on I-485 receipt also. As long as you have AOS pending you should be able to renew H1. So not sure why you want to go through the hassle of refiling your GC

bhasky25
10-11-2010, 03:31 PM
I do not wish to refile my GC.. I just wanted to know if I can get my HB1 renewed even after the underlying 140 is revoked...

s416504
10-11-2010, 04:47 PM
I recently filed 3 year H1B extention and My lawyer asked me following list of things ...
a. a copy of your updated CV/resume.
b. Copy of your earlier H-1B and I-797 approval
c. Copy of your I-140 I-797 approval notice.
d. Copy of I-485 I-797 fee receipts for you and each family member.
e. Very clear copy of each family members' passports ID/expiration page (preferably color).
f. Very clear copy of each family members' most recent US visa (preferably color) and their I-94s.
g. Copy of EAD and advance paroles for you and each family member.

That indicated USCIS may be looking at I140 as well as I485.
So there is no clear cut answer for your question. I guess Your H1B extention could be risky..

Other question for you... You said Your I140 approved in Jan-2009 & job changed in Feb-2009.
I am not sure, For AC21, 180 days counted from I140 approved date OR I485 filed date. If that's from I-485 filed date, Looks you are safe for your H1B extention.

I still advice you to use well know attorney (Khanna/Murthy) for this type of critical questions.

bhasky25
10-11-2010, 04:56 PM
Thanks for replying... Appreciate it ....

I believe the 180 days starts from the day of 485 notice date and not 140 approval. I had confirmed this with my attorney (both my personal one and the companies )before making the shift and I had and RFE on my 485 in June 09 and nothing after that. I would assume that USCIS was happy with my response and the case might have been pre-adjudicated.

As per Ron, one cannot apply for H1B renewals based on revoked 140's. I wanted to see if anyone here has done it successfully. I will check with my attorney as well as my companies attorney.

bigboy007
10-11-2010, 06:01 PM
Thanks for replying... Appreciate it ....

I believe the 180 days starts from the day of 485 notice date and not 140 approval. I had confirmed this with my attorney (both my personal one and the companies )before making the shift and I had and RFE on my 485 in June 09 and nothing after that. I would assume that USCIS was happy with my response and the case might have been pre-adjudicated.

As per Ron, one cannot apply for H1B renewals based on revoked 140's. I wanted to see if anyone here has done it successfully. I will check with my attorney as well as my companies attorney.
180 days is from when 485 filed as per yates memo... Check with attorney and you should be fine I dont want to draw conclusions here though. You may need to switch to AC21 aka use the EAD.. again I am not the lawyer here just coughing up what i know. H1B may be renewed if you have any of 6 years left. Why does he need to start entire GC process for just renewing H1B i dont understand.

h1-b forever
10-13-2010, 11:23 AM
Thanks for replying... Appreciate it ....

I believe the 180 days starts from the day of 485 notice date and not 140 approval. I had confirmed this with my attorney (both my personal one and the companies )before making the shift and I had and RFE on my 485 in June 09 and nothing after that. I would assume that USCIS was happy with my response and the case might have been pre-adjudicated.

As per Ron, one cannot apply for H1B renewals based on revoked 140's. I wanted to see if anyone here has done it successfully. I will check with my attorney as well as my companies attorney.

Did you get an answer?