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anand_787
08-20-2012, 11:51 AM
Hi,

My six years on H1 got expired in April 2012. But before that my employer had filed labor (EB2 PD Sept 2011) and I-140. So my H1 got extended for 3 more years (now the H1 expiry is April 2015).

As you all know that EB2 category is still unavailable. I have now got an offer from a very large US consulting company. They have agreed to process my H1 and also initiate green card (at their expense, nothing paid from my side).

I am kinda confused if I should take the offer or not.

Pros:-
1. Company brand name
2. Better benefits
3. Better job profile
4. Better salary

Cons:-
Will have to get labor and I-140 again
If my current employer cancels my I-140 application upon my resignation, then the new company will have to start GC process all over again, which means that I will get a new PD. My current PD is Sept 2011 under EB2. I expect the new company to start my labor application by Sept/Oct 2013... so basically I would end up delaying my GC application by 2 - 2.5 yrs.

I'm not sure if it is worth to take the risk and join the new company. Please advice doston.

HouseBoat
08-20-2012, 12:06 PM
I think it's better to stay in your current company for few more months because if hr 3012 passes then you may be able to file 485 next year and get ead. If you change your job then you need to start gc process from scratch, in that scenario if your priority date becomes current due to hr 3012, you will miss out opportunity to file 485.

If hr 3012 doesn't pass this year then your date will not become current in the next few years so you can take up new job, start gc process and recapture your old priority date.

anand_787
08-20-2012, 12:15 PM
How likely is it for HR3012 to pass in midst of election and a possible new government?

Also, I checked the EB2 backlog data on DOS website... there is a huge backlog. So even though USCIS may open the door for EB2 in the Sept visa bulletin, it may take until end of 2013 or later from my Sept 2011 PD to become current.

Still debating :~8

Thanks for you advise sir.

anand_787
08-20-2012, 12:17 PM
How likely is it for HR3012 to pass in midst of election and a possible new government?

Also, I checked the EB2 backlog data on DOS website... there is a huge backlog. So even though USCIS may open the door for EB2 in the Sept visa bulletin, it may take until end of 2013 or later from my Sept 2011 PD to become current.

Still debating :~8

Thanks for you advise sir.

*your advice....sorry for typo.

adishail
08-21-2012, 09:40 AM
Anand,

If you have an approved I-140 and change job, you will get to keep you ORGINAL PD. This is the rule, irrespective of whether your ex-employer cancels your application or not.

Make sure you have a copy of your APPROVED I-140 with the correct PD.

In order to use your original PD, the new job need not be similar (the similarity reqyurement applies to AC21 portability).

I am in a similar situation. My PD is Oct 2010. I-140 approved in June 2011. Changed job in Oct 2011. The new company has started my GC process again. Of course, PERM and I-140 needs to be done again - but I am still using my Oct 2010 PD.

Good Luck.

anand_787
08-21-2012, 10:39 AM
Hey...thanks 'Adishail' for your reply. This is very encouraging. I have a scanned copy of the front page of I-140 approval (showing the PD and the EB 2 category). So you think that would be enough?

Also, as a favor, could you please tell me where I can lookup the rule which states that one can use the same old PD even if the employer cancels the I-140 application?

Thanks again for the reply.

-Anand

adishail
08-21-2012, 10:45 AM
That should be enough. Again - make sure it is the approval notice and not the reciept notice.

For reference:

Looks up Q#13 here - 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=68439c7755cb9010VgnVCM10000045f3d6a1 RCRD)

Also check here - Establishment and Retention of EB Priority Dates (http://imminfo.com/Library/green_cards/EB/establishment_retention_EB_priority_dates.html)

adishail
08-21-2012, 10:46 AM
As a final note - Unless your original I-140 is revoked by the USCIS for fraud or misrepresentation, you will retain that priority date for all future I-140 filings.

MarkVikki
08-21-2012, 11:05 AM
As a final note - Unless your original I-140 is revoked by the USCIS for fraud or misrepresentation, you will retain that priority date for all future I-140 filings.

The USCIS link you posted is talking about successor in interest cases right. Does this apply when you change the employer?

Also, it mentioned either a copy of I-140 or an annotation of the receipt number...so copy is not mandatory

anand_787
08-21-2012, 11:15 AM
That should be enough. Again - make sure it is the approval notice and not the reciept notice.

For reference:

Looks up Q#13 here - 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=68439c7755cb9010VgnVCM10000045f3d6a1 RCRD)

Also check here - Establishment and Retention of EB Priority Dates (http://imminfo.com/Library/green_cards/EB/establishment_retention_EB_priority_dates.html)

Yeah...that link talks about SII type cases. But, going by your experience (which is more relevant than other references) if you have done that or are in the process of doing that...then should be true.

I have attached a copy of my approval notice... I guess this is what you were referring to. Its been more than 6 months since my I-140 approval.

adishail
08-21-2012, 11:17 AM
If you look at the relevant CFR ( 8 CFR 204.5(e)), it clearly states the following -

Note* = section 203(b) refers to Employment-Based Immigrants

(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.

hope4gc
08-21-2012, 11:21 AM
As a final note - Unless your original I-140 is revoked by the USCIS for fraud or misrepresentation, you will retain that priority date for all future I-140 filings.


Check this Link

Frequently Asked Questions - Form I-140 | Immigration.Com - Law Offices of Rajiv S. Khanna, PC (http://www.immigration.com/faq/us-green-card/form-i-140#t101n4454)

hope4gc
08-21-2012, 11:22 AM
Check this Link

Frequently Asked Questions - Form I-140 | Immigration.Com - Law Offices of Rajiv S. Khanna, PC (http://www.immigration.com/faq/us-green-card/form-i-140#t101n4454)

I meant to say yes, bu tmy subject said Not true

Frequently Asked Questions - Form I-140 | Immigration.Com - Law Offices of Rajiv S. Khanna, PC (http://www.immigration.com/faq/us-green-card/form-i-140#t101n4454)

adishail
08-21-2012, 11:22 AM
This is correct.

Just make sure that the PD in this approval is correct. When the new company files for I-140 (after getting a new PERM), they need to attach an additonal form to request that the orginal PD should be used. If all goes well, the new I-140 approval notice will have your original PD based on your first I-140 approval.

As I mentioned in my previous post - secton 203 (b) referes to Emplyment-Based immigrants.

Yeah...that link talks about SII type cases. But, going by your experience (which is more relevant than other references) if you have done that or are in the process of doing that...then should be true.

I have attached a copy of my approval notice... I guess this is what you were referring to. Its been more than 6 months since my I-140 approval.

adishail
08-21-2012, 11:26 AM
For those who might be curious - this rule does not limit you to the same category. Hence, if your original PD was in EB3. The oroginal PD can still be used for any subsequent petitions in EB1, EB2 or EB3.

anand_787
08-21-2012, 11:29 AM
I meant to say yes, bu tmy subject said Not true

Frequently Asked Questions - Form I-140 | Immigration.Com - Law Offices of Rajiv S. Khanna, PC (http://www.immigration.com/faq/us-green-card/form-i-140#t101n4454)

Now this is misleading. Here is the quote from the above link...

1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)?

2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

Answers
1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.

2. No.

Now section 1 says that the employer can revoke your I-140 application but section 2 says employer cannot withdraw the application. What Is there any difference between revoking an application and withdrawing an application?

adishail
08-21-2012, 11:35 AM
As far I am aware, based on what my new immigration firm has told me, once your I-140 is approved, the only way to loose your original PD is that USCIS revokes it for fraud or misrepresentation.

MarkVikki
08-21-2012, 11:41 AM
If you look at the relevant CFR ( 8 CFR 204.5(e)), it clearly states the following -

Note* = section 203(b) refers to Employment-Based Immigrants

(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.

Thanks.....good thing is that copy of i140 approval notice is not mandatory...just a receipt number annotation is fine

adishail
08-21-2012, 11:43 AM
That is correct, but copy of the approval makes your case fool prove. Like what Anand has.

Thanks.....good thing is that copy of i140 approval notice is not mandatory...just a receipt number annotation is fine

sachin007
08-21-2012, 12:58 PM
This is very helpful guys, I'm also in very similar situation. After reading all the posts now I'm also feeling much more relaxed.

adishail
08-21-2012, 01:03 PM
I think this is a pretty common item of concern. Even when I was about to change jobs, I was nervous about this.

This is very helpful guys, I'm also in very similar situation. After reading all the posts now I'm also feeling much more relaxed.

anand_787
08-22-2012, 09:16 AM
I think this is a pretty common item of concern. Even when I was about to change jobs, I was nervous about this.

Thanks man... please let us know later how your case went. Goodluck!