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View Full Version : Any recent eb3->eb2 ports with previous withdrawn i140??


natasha_reddy
08-20-2011, 03:14 PM
Hello All,

I'm almost close to moving to a different company who is willing to process my GC in Eb2. I have my i140 under eb3 from my current employer. I would like to prepare for the worst case scenario w.r.t porting, ie what aif my current employer withdraws my i140 after I transfer to the new company. In such a case, can I still retain my PD? I have read numerous ambiguous posts on this subject. Therefore, I would like to hear from those who have successfully ported their PDs from EB3 to Eb2 after their previous employer withdrew earlier I140.

So please be clear about your case. Thanks for all your help.


~ My last attempt on placing my GC process in the fast track.

Thanks,
Nats

gk_2000
08-20-2011, 04:38 PM
Hello All,

I'm almost close to moving to a different company who is willing to process my GC in Eb2. I have my i140 under eb3 from my current employer. I would like to prepare for the worst case scenario w.r.t porting, ie what aif my current employer withdraws my i140 after I transfer to the new company. In such a case, can I still retain my PD? I have read numerous ambiguous posts on this subject. Therefore, I would like to hear from those who have successfully ported their PDs from EB3 to Eb2 after their previous employer withdrew earlier I140.

So please be clear about your case. Thanks for all your help.


~ My last attempt on placing my GC process in the fast track.

Thanks,
Nats

I am n the same situation and I could use some advice too..

IMO eb3->eb2 conversion anyway requires us to restart the process from scratch, therefore the old i-140 withdrawal will have little consequence. I have also heard, particularly in Ron Gotcher's forums that your PD is yours to keep no matter what. So it appears to me we basically restart the process and request the old PD when applying for new i-140. You might require a copy of the old i-140 approval for this

The question which I also have is, will it affect the 2nd h1b extension (ie beyond 6 yrs) based on approved i-140 if the old one is withdrawn?

hsd31
08-22-2011, 10:09 AM
The question which I also have is, will it affect the 2nd h1b extension (ie beyond 6 yrs) based on approved i-140 if the old one is withdrawn?

To get an H1B extension beyond 6 years, you need to file your PERM before the start of the 6th year of your H1B or have an approved I-140 before the end of your 6th year. Once you qualify for a H1B extension, 1 year(PERM filed or approved) or 3 year(I-140 approved), the H1B extension is independent of the status of the PERM/I-140 .. i.e. your H1B remains valid irrespective of the validity for your PERM or I-140. So even if your employer withdraws your I-140, your H1B extension remains valid for its entirety. Past the end of your H1b extension (7th year or 9th year), you will need an approved I-140 to get further extensions.

hope4gc
08-22-2011, 10:47 AM
I could use the information too, if people who have done this successfully shed some light on this kind of situation
I am in the same boat but the new H1B is in proces (6th year) and yet to file the labour and I-140.
Hoping to retain the PD even if revoked

Thanks in advance

dmitri
12-07-2011, 01:56 PM
no
this rule has changed recently
USCIS will not port your old PD if old employer has revoked I 140.
very unfortunate but USCIS took this stand since there were too many people doing it.
and obviously USCIS does not want to give GC to Indians(and chinese) in these tough economic times...

gopalx
12-07-2011, 02:12 PM
no
this rule has changed recently
USCIS will not port your old PD if old employer has revoked I 140.
very unfortunate but USCIS took this stand since there were too many people doing it.
and obviously USCIS does not want to give GC to Indians(and chinese) in these tough economic times...

Could you pls provide a link to the complete information notice regarding this recent change?

nsureshn
12-07-2011, 02:15 PM
I was in the same situation and was able to port. I had my EB3 with employer A (PD: Apr 2008. Did not apply 485). I left the employer in Dec 2010 and they revoked my I-140 2 days after I left the company. Employer B (current one), started my GC (EB2) in Apr 2011. Got my labor in Aug and I-140 (premium) in Sep. I got the old PD ported to the new I-140.

I am 100% sure that employer A had sent a letter to revoke my I-140 just 2 days after I left them, as I got an email from their HR. However, I still see my LIN# of I-140 as approved in USCIS site. I head read in this forum that USCIS does not update the status frequently.

Since, I had got my H1B extended by employer B before I left employer A, I was able to get a 3 yr extn based on my old approved I-140.

diptam
12-07-2011, 02:16 PM
If this is a real rule/law could you please point us to the location where we can read about it ?
Even if its in some lawyer's blog please send us the link.

I did porting and received GC within 13 months end 2 end , however I also had this risk. I discussed this risk with the new lawyer whom I was going to hire for porting and interfiling.

She told me in Sep 2010 that "PD is locked mine 6 months after the approval of I-140" AS LONG AS my ex-employer or USCIS don't revoke it on grounds of "fraud or misrepresentation". Could you please help these guys pointing to the new law ??

no
this rule has changed recently
USCIS will not port your old PD if old employer has revoked I 140.
very unfortunate but USCIS took this stand since there were too many people doing it.
and obviously USCIS does not want to give GC to Indians(and chinese) in these tough economic times...

diptam
12-07-2011, 02:19 PM
I asked the earlier guy to show us some documents or links that the law has changed. The other folks who are waiting for PORTING would be discouraged by wrong information.

There is no point spreading rumour and discourage genuine candidates of porting NOT to do it

I was in the same situation and was able to port. I had my EB3 with employer A (PD: Apr 2008. Did not apply 485). I left the employer in Dec 2010 and they revoked my I-140 2 days after I left the company. Employer B (current one), started my GC (EB2) in Apr 2011. Got my labor in Aug and I-140 (premium) in Sep. I got the old PD ported to the new I-140.

I am 100% sure that employer A had sent a letter to revoke my I-140 just 2 days after I left them, as I got an email from their HR. However, I still see my LIN# of I-140 as approved in USCIS site. I head read in this forum that USCIS does not update the status frequently.

Since, I had got my H1B extended by employer B before I left employer A, I was able to get a 3 yr extn based on my old approved I-140.

Pappu_Pager
12-07-2011, 02:22 PM
Hello All,

I'm almost close to moving to a different company who is willing to process my GC in Eb2. I have my i140 under eb3 from my current employer. I would like to prepare for the worst case scenario w.r.t porting, ie what aif my current employer withdraws my i140 after I transfer to the new company. In such a case, can I still retain my PD? I have read numerous ambiguous posts on this subject. Therefore, I would like to hear from those who have successfully ported their PDs from EB3 to Eb2 after their previous employer withdrew earlier I140.

So please be clear about your case. Thanks for all your help.


~ My last attempt on placing my GC process in the fast track.

Thanks,
Nats

Consult a good lawyer. The rule is totally not clear, at this moment.

i.e. it says, USCIS can port your date, if the old 140 is not revoked and if USCIS feels it was a bona fide job. I.e. even if your 140 is not revoked but if USCIS believes that old job was not bona fide (which is rare case, such as -- your old company had fake jobs or doesnt exist anymore etc), then also the date cannot be ported.

Also on the other hand, if old 140 is revoked by your employer but USCIS believes it was a valid bona fide, then also there are chances to port the old date (again, this is rare case, because, if the employer withdraws usually there is a good evidence that the job is no more bona fide.) ..

Talk to good lawyer .. porting is always risky .. unless you are open for preparing new GC in EB2 with new PD, it should not be done ..

dmitri
12-07-2011, 02:58 PM
contact rajiv khanna from immigration.com and you will get the answer.
USCIS has changed this recently.
I know Ron Go*** is the only lawyer who says confidently that PD is portable no matter what.
but not anymore.
chk with Murthy also...

RocketFast
12-07-2011, 03:13 PM
Rajiv Khanna's FAQs clearly say that you _may_ loose the priority date if your old employer cancels/revokes the I-140. Really depends on the adjudicating officer.

Sucks but true.

If we can ask USCIS to come out with a clear direction in this regard, it will help with the uncertainties. Can IV or AILA help in this regard?

RocketFast
12-07-2011, 03:29 PM
Cross posting from a different thread:

I feel there is a lot of confusion in this particular scenario
* Employer A applies for your PERM and I-140. I-140 gets approved. I-485 is not filed
* You quit Employer A and join Employer B
* Employer A revokes your I-140 --> This is the main concern
* Employer B files your PERM and applies for I-140

In a few cases that I have tracked, your I-140 with company 'B' gets approved without the earlier priority date. Asking USCIS to correct this gets the following reply: "You can ask for this while filing I-1485". And a lot of denials when you file your I-1485s saying that your priority date is not current. Many guys have managed to get it approved after a lot of MTRs.

It is as if different case officers treat this case differently.

Murthy says the following: The same is references at the IV wiki

"There are some issues with respect to retention of the priority date if the I-140 has been revoked. Generally, however, it is the policy of the USCIS to allow the retention and transfer of the earlier priority date if the I-140 petition has not been revoked by the USCIS for fraud or misrepresentation."

Reference:
ht*p://www.murthy.com/news/ n_eb3to2.html

The dangerous word here is "Generally". Is there no clear USCIS rule on this?

A different law firm makes it very clear that USCIS will reject your priority date retention based on a law:

Refernce:
ht*p://www.peterli.us/Content/AOS/ PriorityDate.htm

Pasting the relevent USCIS law:

USCIS has posted an update to the Adjudicators Field Manual on September 12, 2006

Page 27 states:

"(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien's priority date is established by the filing of the labor certification, once the alien's Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest)."

8 CFR 204.5(e) states:

"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." (Emphasis added).

This regulation says a priority date will not be retained for a petition revoked under section 205 of the Act. Section 205 of the Act states:

“The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.”

This encompasses revocation for any reason, not just for fraud or willful misrepresentation. The regulations interpreting INA 205 further state, at 8 CFR 205.1(a)(iii)(C) that an I-140 petition shall be automatically revoked “Upon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with any officer of the Service who is authorized to grant or deny petitions.”

Thus, under the law and regulations, when an employment-based I-140 petitioner withdraws an I-140 petition because the beneficiary no longer works for him or her, USCIS automatically revokes the petition which triggers 8 CFR 204.5(e), stating that the revoked petition does not confer a priority date.


There is another memo which I can provide that allows this kind of porting. But, there is clearly a conflict.

dmitri
12-07-2011, 03:43 PM
RocketFast,
you got it right.
i spoke with rajiv khanna and he said he needs to update his FAQ,
with regards to AILA
i spoke with another attorney(from )
and she said
she brought up this question in the AILA teleconference and there was
Pin Drop Silence in the conference at that time
and one of the USCIS personnel said that they are seeking guidance from USCIS on this matter.-This was 3 months back.
now they have changed their policy(when khanna told me) and wont port the PD if i 140 is revoked.
i was so devastated myself hearing this because my PD is also 2 years old and didnt want to lose 2 years....
for those who dont beleive
go to immigration.com and download the recorded free conference from their website and khanna has said clearly about the change of this rule....

sparky_jones
12-13-2011, 03:12 PM
I have also heard, particularly in Ron Gotcher's forums that your PD is yours to keep no matter what. So it appears to me we basically restart the process and request the old PD when applying for new i-140. You might require a copy of the old i-140 approval for this
The same lawyer also recommends that you actually ask your former employer to proactively withdraw your previous I-140 to avoid the risk due to potential fraud-based revocation by USCIS.

Either this lawyer knows something that the rest of AILA members don't, or he's just plain clueless. One has to make their own best judgement.

Alien
12-13-2011, 03:36 PM
So , I wonder what will happen if you switch to a new employer and file AC-21 and your previous employer revokes your 1-40. Are you now without any valid PD? Can you even do things such as renew your EAD and AP?

chikki77
12-14-2011, 03:36 PM
Alien,

IF you applied for AC-21 (180 days after reciept date of I485) you retain earlier priority date.

Topic being discussed here is for folks who have not applied for COS (I-485) yet and earlier employer who applied for LABOR and I-140, revokes I-140 as the beneficiary has changed employers.


You should be fine as from your profile it looks like you have applied for I-485 and AC-21.


Thanks

mayurcreation
12-14-2011, 03:45 PM
In my case, I have two I140 with different priority date and category. My lawyer has requested for "REQUEST FOR CONVERSION OF EB-3 PRIORITY DATE TO EB-2 PETITION". I am guessing that my case is under review with VO before they cash out my check and issue me receipt.

MD : Nov/30
RD : Dec/1
Center : TSC
Check cash out dt: ?? :confused:
ND : ?? :mad:

nekkanti
12-15-2011, 09:41 PM
But there are many cases with USCIS, where old priority date is not recaptured on new filings even if previous employer revokes old approved I-140 due to retaliation or due to company's policy to annually revoke cases for former employees. In these circumstances, employee or new employer should call National Service Center and talk to representative and remind them about Yates Memo, which clearly says earliest priority date should be recaptured unless petition was revoked due to fraud or misrepresentation. If you will talk to them nicely and puftorth your case by referencing Yates Memo, you might be able to convince them to recapture old PD. See excerpt from Yates Memo below.


From: William R. Yates

Date: 09/23/05

Re: Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of H-1B Status Beyond the 6th Year.

Revisions to Adjudicator’s Field Manual (AFM) Chapters 22.2(b)(2), 22.2(b)(3)(B), 22.2(b)(3)(F), (22.2(b)(5) and 33.3(g)(8) (AFM Update AD 05-15)
.....
In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification

Direct url for above info
http:///2011/01/how-to-know-if-old-i-140-has-been.html