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View Full Version : I 140 EAD : What we all can do?


Eadfor I140
12-24-2015, 05:23 PM
All forum members, please suggest what we can do for our cause "EAD for American Workers " .

My suggestion

1. We already in touch with Senators . What we can do for attention ?
2. Contacting Media : Awareness Campaign
3. Sending comments once new I 140 EAD draft is published to federal register.


IV Admin , please post your suggestion .

Eadfor I140
12-24-2015, 07:54 PM
Forum members, please come forward with your comments. Every comment can add value.

We are American Worker who need freedom from H1 & L1. Because of decade wait, our life are affected. Our kids who are American Citizen , are impacted.

I 140 EAD is the hope we have before Election.

Please come forward & comment. What we can do better to get us notice & our plea can be heard.

Bhishma
12-24-2015, 09:30 PM
Dude,

Relax. Did you notice the admins and mods are away
For the last few days. It tells us that they are involved
in something very important.

I noticed that you are all over the forum and on every
single active thread. Keep your calm and let everyone
process these events as they happen.

Never in the history of mankind was anything achieved
in haste.

GCTopDream
12-24-2015, 10:01 PM
😂

Eadfor I140
12-24-2015, 10:55 PM
We are relaxing for the years. Those who want to relax, can relax till eternity. Time now to act. Lets give comments that help & add value to our cause " I 140 EAD ". Don't get me wrong, but this is not a forum to fight among us. We are here for the cause.

IV is working hard for years & it is time now to help them with our feeds & support.

One of the idea that strike me was to promote our cause on YouTube. IV is promoting Immigration for years. We can use that channel.

Lets get EAD ===> :)

Eadfor I140
12-24-2015, 11:29 PM
Thanks my friends who are reading this post. Their are 500 + reads. What that means is we all are interested in EAD. Is this my assumption? Always understand that assumption should not be the basic principle of the trust.

My friends who are in field of Information Technology knows about
Deming circle/cycle/wheel, Shewhart cycle, control circle/cycle, or plan–do–study–act (PDSA). We already going through many cycle of PDCA/ PDSA for our cause. We need process improvement.

Lets understand that we will see expected result for our cause if it is for benefit of American Workers & American Citizen. We need good Business Case which is started by IV. We need to promote the Case. I would like everyone on this forum to think that we will win our case.

Those who want to understand what are basis for "EAD for I 140" can start with reading Memo for EAD.

USCIS_Memo_for_EAD_for_I140_June2015

https://www.dropbox.com/s/dwcu66m3vnj9nta/USCIS_Memo_for_EAD_for_I140_June2015.pdf?dl=0

Information about the proposed application for Employee Authorization I 765

http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201511-1615-011 - Information about application for Employee Authorization

OMB Control No: 1615-0040

Site those who are interested in updates - immigration-law.com

Eadfor I140
12-25-2015, 11:41 AM
Proposed/ Draft Application for Employment Authorization

http://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201511-1615-011&icID=20321


Did anyone found proposed travel document or their is no I 131 goes with this rule or we can use existing I 131 ?

Eadfor I140
12-25-2015, 08:48 PM
We are getting more updates from other sites & our American Worker friends


The I 140 EAD will required everyone to maintain immigration status. We all know that EAD is not a immigration status , it is just a work permit.

The requirement of Compelling Circumstances is coming from common law.

So evidance at this point shows that USCIS did their homework to avoid all kind of law suits .

EAD Cost $380 (EAD fee) + Biometric Collection ($85) + Photo ($10)
==========================================

The major issue points that will be limiting use of EAD will be

"I-140 EAD will have one other restriction other than 'compelling circumstances' requirement and requirement of one year or less for visa cutoff date for EAD renewal: There will be no 90-day approval mandate and no accompanying interim EAD request available when the EAD is not issued within 90 days from the application. "


We have to stage a campaign for freedom we are looking from I 140 EAD . At this point it is locked down to your current immigration status.

Eadfor I140
12-26-2015, 01:11 AM
Questions everyone has now .............

1.USCIS has indicated that they have been drafting language that would allow I-140s to survive even if an employer seeks to revoke an I-140 or an employer shuts down. This would have major positive benefits for employees and employers since workers could move in to higher positions within a company without having to re-file a new green card or move to a new employer without the new employer having to file a new petition. Will that language be in the proposed rule language for the EADs or is it going to be in a separate rule?
2.What are “compelling circumstances”? Will USCIS provide specific examples? If they don’t we could see widely different applications of the rule depending on the examiner deciding the application.
3.Will advance parole be available to participants in the EAD program and, if so, what will the criteria be?
4.What will happen to people who have let their H-1Bs lapse and who are ineligible to extend their EADs because their priority dates are not current? Why did USCIS put this restriction in the proposed rule? Will they be able to get back in to H-1B status? Will they have to travel to US consulates abroad to get back in to H-1B status or will USCIS allow employers to process these cases as late-filed change of status petitions?
5.How long will employment cards be valid? If they are valid for two or three years as opposed one year, that would obviously reduce the risks associated with the strange EAD extension process included in the rule.
6.Will starting a business be viewed as a compelling circumstance? If so, combined with a future parole for entrepreneur rule, this rule could be very good news.
7.What is the legal basis for the regulation? While many legal experts have said USCIS has discretion to enact a policy like this, it will be interesting to read USCIS’ analysis and also if they explain why they have placed more restrictions on the program than some within the Administration felt were necessary. That obviously will be important for legal experts commenting on the rule.

JustADesi
12-30-2015, 10:46 PM
Thanks Immigration voice for posting about the new proposed rule. We all waiting for the action for us.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-32666.pdf

Eadfor I140
01-01-2016, 03:01 PM
Does this rule give freedom? It is limited job portability & we will become "White-Collar Slave ". We should voice our concerns as American Workers. Join IV meeting on Sunday.

Among other things, DHS is proposing to amend its regulations in order to:
•Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
•Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
•Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
•Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
•Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
1.Are the beneficiaries of an approved I-140 petition,
2.Remain unable to adjust status due to visa unavailability, and
3.Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.
•Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
•Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.

Eadfor I140
01-02-2016, 08:20 PM
The source is The Oh Law Firm (http://www.immigration-law.com/)


Q-7: Can an employee with approved I-140 can switch to a different job from the approved I-140 job to keep priority date and elibility for AC 21 portability and extension of H-1B nonimmigrant status?


Discussion: It appears the proposed rule does not require that the new job must be same or similar occupation with the approved I-140 petition for the purpose of the AC 21 job portability and extension or change of nonimmigrant status based on the approved I-140 petition which has not been revoked within 180 days of its approval. Since the approved I-140 petition is served not for the purpose of "approved I-140 portability" for the purpose of I-485 application eligibility but only for the purpose of "job portability" for nonimmigrant status, it appears Section 204(j) would not apply that requires a same or similar occupational classification for the new job. There is no specific language in the proposed rule that those with unrevoked I-140 who is yet to file I-485 applications should take only same or similar occupation when they change the employment. The new employer can file a new PERM and I-140 petition for any jobs or occupation to recapture the retained priority date under this proposed rule.

Q-6: I have been working with employer A for more than 2 years after I-140 got approved, and then joined another employer B later on. However, the employer revoked the approved petition. Can I still use that revoked approved I-140?


Discussion: Your question involves two issues. The first issue is whether the final rule of this proposed rule will apply retroactively. If yes, your approved I-140 petition and priority date will remain valid "for the purpose" of portability of the job and extension/change of nonimmigrant status even beyond H-1B six-year limit since the approved I-140 petition was revoked 180 days after the approval of the I-140 petition, but your new employer will have to file a PERM application and I-140 petition for you to apply for I-485 application when your established priority becomes current in the Visa Bulletin. Without such new approved I-140 petition by the new employer, you will not be able to file I-485 application when your priority date becomes current in the Visa Bulletin, according to this proposed rule.

Q-5: According to AC21, after 180 days of filing for I 485, we only need to provide a valid job offer in case employer is changed. The Job offer can be from self-petitioning or from another company in same or similar category without need of refiling of I-140. Are the same rules going to apply for job portability after approval of I-140?


Discussion: The same rule does not apply for I-140 approved foreign workers who are yet to file I-485. Under the proposed rule, when the beneficiary of the approved I-140 changes employer and employer withdraws the approved I-140 petition, the offer of permanent employment by the petitioner employer that supports the petitioned job will allegedly disappear and without such offered employment for the PERM job, the beneficiary cannot file I-485 application even if the approved I-140 remains valid. In other words, the proposed rule permits a "job portability" if the approved I-140 petition is not withdrawn by the employer but not "portability of the approved I-140 petition" for the purpose of eligibility for I-485 application. Portability of the approved I-140 is available only to the beneficiary whose I-485 is pending for 180 days and the beneficiary changes employment using the approved I-140 petition under Section 204(j) of the immigration statute. For the reasons, the proposed rule require that new employer files PERM and I-140 petition and then the beneficiary recaptures of priority date from the former employer's I-140 petition. This is a sad part of the proposed rule.

Q-4: 1.Am I eligible to apply and get the EAD even if I don't plan to switch job at the time of applying


Discussion: Inasmuch as you establish the compelling circumstances and approved I-140, you can apply for EAD without changing employer. However, please read the earlier discussion on this site. You will take a huge risk in the long run if you are given a temporary employment authorization under this proposed rule.

Q-3: If I change my employer while waiting for the visa number, will I able able to get 3-year H-1B extension and H-4 EAD for my spouse?


Discussion: If your I-140 sponsoring employer withdraws the approved I-140 petition within 180 days of approval, your approved I-140 will be automatically revoked and you cannot apply for H-1B extension beyond 6-year maximum limit based on the AC 21 law, even though you still keep the priority date established by the approved I-140. If the approved I-140 is not withdrawn by your I-140 sponsoring employer within 180 days, you can change employer and extend H-1B extension in three-year increments based on AC 21 Section 104(C). This is one of the benefits this proposed rule will provide with the I-140 approved foreign workers. Unfortunately, the benefit stops at the availability of change of employer (job portability). However, in order to apply for I-485 application when the priority date becomes available in the Visa Bulletin, you cannot use this approved I-140 petition of your former employer who sponsored I-140 petition unless your former employer did not withdraw the approved I-140 petition and is willing to support your I-485 application by providing I-485 Supplement J with a proof that the proffered job continues and will continue to exist and the job is a bona fide job and the employer intends to employ you for the permanent job once your green card is approved. Otherwise, your new employer will have to start all over again to file a PERM application and another I-140 petition. The good thing is that you can recapture the earlier priority date from the previously approved I-140 through your former employer since your employer did not withdraw the approved I-140 within 180 days. As for the H-4 spouse, since the approved I-140 remain valid and you maintain H-1B status, your spouse will be able to apply or extend H-4 EAD under the H-4 EAD regulation.

Q-2: Will the commpanying chid of 18 years of age of the I-140 approved foreign worker get EAD through this immigration reform?


Discussion: If the I-140 approved foreign worker is eligible for this special EAD based on the proof of compelling circumstances, his/her child under 21 years of age will also be eligible for this special EAD. However, unless this special EAD is first granted to the parent foreign worker, the child will not be able to get the EAD.

Q-1: Advance Parole: Would they give AP for I-140 EAD Applicant?


Discussion: There is no I-140 EAD other than "Independent Grant of Employment Authorization" based on compelling circumstances. There are two caveats for applying for this Independent Grant of Employment Authorization: (1) Once this employment authorization is granted based on the approved I-140 and compelling circumstances, he/she loses the nonimmigrant status However, there is no Advance Parole provided for him/her under the proposed rule, even if one proves compelling circumstances to get the employment authorization. Therefore, there is a serious question as to whether he/she can travel outside of the U.S. and return to the U.S. once he/she get this employment authorization. (2) Since the grant of this employment authorization will relinquish his/her nonimmigrant status, if the employment authorization is not extended after one year for failure of proof of another compelling circumstances or proof that his/her priority date is less than one year awary for the immigrant visa cutoff date in the Visa Bulletin, one will lose the legal status and will not be able to adjust the status of permanent residence within the United States. Therefore, the proposed rule advises that unless he/she considers consular immigrant visa processing through the U.S. Consulate outside of the U.S. rather than adjustment of status within the U.S., he/she may not take this special employment authorization. There is also a comment in the proposed rule that the USCIS did not intend to give EAD for the I-140 approved foreign workers waiting for the visa-cut date. Therefore, as we reported earlier before the proposed rule was released, the USCIS wants the I-140 approved foreign workers to keep one of the nonimmigrant visa statuses all the way until they can file I-485 applications, albeit they will be able to change employment while they wait for the visa number. This is a big disappointment with this proposed rule for the I-140 approved foreign workers.

Eadfor I140
01-03-2016, 02:43 PM
Q15: I have an approved 140 for a long time and my company insists me to move to a different state. If I move to a different state, would I be able to file 485 when my date becomes current based on the approved I-140? The employer would not withdraw the approved 140.


Discussion: Read the details of discussion in the foregoing Q14. Under the current law as well as the proposed rule, the answer to your question is: Yes, you can file I-485 under one key condition. Even if you do work at the specific location of the offered job in the PERM and approved I-140 petition, inasmuch as the employer has a proof that the offered permanent job contuies to exist at the time of your I-485 filing and at the time your I-485 is approved, you are OK. Theoretically, you do not have to work at the location for a "temporary" nonimmigrant job inasmuch as the company has the offered permanent job still existing. The employer will just have to carry out additional burden of proof on the "existance of the offerred permanent job" when you work at a different job site of your employer pending the I-485 proceeding. For instance, if you are a consultant and the offered permanent job is a client site in Atlanta, Georgia and you are relocated to a new site in New York "because of the termination of the consulting project in Atlanta," your I-485 will be denied because there is no longer the offered job in the PERM and approved I-140 petition. This rule does not change in the proposed rule.

Q14: I am currently working with company A but my EB-2 I-140 petition was filed through company B which was approved 4 years ago. However I have never been employed by the Company B. Are there any portability issues if I do H-1B transfer to company C using the new regulation proposed here? Company C does not plan to start a EB I-140 petition, so I would have to remain with them in H-1B status with 3 year renewals.


Discussion: It depends. If the final rule of this proposed rule provides that the rule will apply retroactively, then you can port your H-1B to company C, because the proposed rule provides that once your I-140 is approved and not revoked within 180 days of approval, you can achieve job portability to another employers and get H-1B extension with new employers in three-year increments under AC 21 Section 104(C). However, the only employer who can sponsor your I-485 application when your priority date becomes current in the Visa Bulletin will be Company B inasmuch as the Company B has not withdrawn the approved I-140 petition, no matter before 180 days or after 180 days. Under the immigration law, for PERM, I-140, and I-485, the foreign worker does not have to be an employee of the sponsoring company for sponsorship. However, the sponsoring company must prove that the offerred permanent job existed at the time of PERM filing and I-140 petition, and will continue to exist at the time wehn I-485 is filed and approved and after I-485 is approved. The sponsoring employer will also hav to prove that the petitioning employer intends and will continue to intend to offer the "permanent" position to the alien worker when I-485 is approved. The proposed rule will require the sponsoring employer to sign and submit a new form, I-485 Supplement J to attest to these facts on oath. The employee also have to attest to the facts in the form Supplement J. Therefore, when the sponsoring employer does not withdraw the approved I-140 petition, the foreign worker will enjoy a lot of flexibility including job portability and extension of nonimmigrant status pending availability of priority date in the Visa Bulletin and filing of I-485 application by the foreign worker. The key term under the proposed rule is a continuing existence of the valid "job offer." Here the term "job" means not current "temporary" nonimmigrant job but the "permanent" job which is offered in the PERM and I-140 petition. There is a disctinction between a "temporary" job in nonimmigrant status and a "permanent" job when I-485 application is approved. However, throughout the process starting from filing of PERM application, I-140 petition, and I-485 filing and approval, the company should have such a job, no matter whether the foreign worker is currently working on the job or not. Under the proposed rule, if the sponsoring employer withdraws the offered job for the PERM and I-140, the foreign worker cannot file I-485 no matter through the sponsoring employer or another employer since the basic premises of employment-based immigrant proceeding, "offered job," that supports the approved PERM and I-140 petition, is gone and disappeared by withdrawal. Therefore, even when the approved I-140 is withdrawn after 180 days of the approval, when there is a job portability, unless the new employer files a new PERM and I-140 petition, no matter whether similar job or not, the foreign worker cannot file I-485 application based on the approved I-140 which has been withdrawn by the sponsoring employer. However, for the purpose of job portability and extension of H-1B nonimmigrant status, the approved I-140 will remain valid inasmuch as it was not withdrawn by the sponsoring employer within 180 days of approval under the proposed rule. This is a huge benefit for certain foreign workers who have been changing job before filing I-485 application, especially when the sponsoring employer withdrew the approved I-140 petition.

Q13: I am in my 3rd year in H-1B with approved 140. Will I be eligible for 3 yr extensions based on this ? Or is the proposed rule only applicable for folks who are beyond their 6 year limit ? My 140 has been approved an year back.


Discussion: Absolutely. Even now without this proposed rule, you can extend H-1B under AC 21 Section 104(C) law in 3-year increments while you wait for your priority date current and when your priority date is not current in the Visa Bulletin. There will be no change with this rule even under the proposed rule inasmuch as your approved I-140 was not withdrawn within 180 days of approval. If such withdrawal happens within 180 days, the only thing you can save is the priority date and the I-140 will be revoked.

Q12: One of the reforms in this proposed rule includes 180-day automatic employment authorization for EAD applicants pending the application. How will DMV be able to issue renewal of my driver license without a proof of a valid nonimmigrant status?


Discussion: This proposed rule will eliminate "interim EAD" when they fail to approve EAD application in 90 days. In compensation for such action, this proposed rule will automcally extend the current expiring EAD card for 180 days for those who have timely filed EAD extension application. The USCIS will update their SAVE to help the DMVs to verify automatically extended employment authorization once the proposed rule is implemented.

Q11: I am in L-1B nonimmigrant status reaching the five-year limit at the end of 2016. My employer tried H-1B lotteries in vain for the last two years. The employer filed and obtained I-140 for me seven months ago. I am an Indian and the EB-2 visa number is currently not available. Would the proposed rule help me to continue to stay and work after L-1 is maxed out?


Discussion: Unfortunately, AC 21 is not a help for you to apply for your nonimmigrant status. If you fail in another H-1B cap lottery in April 2016 and this proposed rule in place, you may try application for special EAD for I-140 approved foreign worker with compelling circumstances. L-1 is one of the nonimmigrant visa categories that are eligible for this special stop-gap EAD under the proposed rule inasmuch as you can prove compelling circumstances. If your role with the employer is very important and your departure can affect the company's business, I think your case will fit to the definition of "compelling circumstances." Your EAD will be issued and extended inasmuch as the compelling circumstances continue to exist, at least until the time when you win in another H-1B lottery and once you are successful in changing status from L-1B to H-1B, you can use AC 21 Section 104(C) and continue your H-1B extensions in three-year increment until you file I-485 and your green card is approved.

Q10: I got my PERM and 140 approved under EB-2 category from India. What happens if after 180 days of 140 approval date, I apply for a new petition on National Interest Waiver and get new 140 approved. Would I be able to retain the same priority date which I originally got through my initial job for I-140 when I file I-485 based on the new I-140 which is obtained through National Interest Waiver? Would my priority date would get reset if I apply for NIW?


Discussion: Under the proposed regulation, you will be able to retain the priority which you got from the initial I-140 petition. Besides, using the retained priority date and new I-140 petition which you will get through the NIW, you will be able to file I-485 application when your priority date becomes current.

Eadfor I140
01-05-2016, 12:23 PM
Source Proposed EB Modernization Q&A (http://www.immigration-law.com/Proposed%20EB%20Modernization%20Reform%20Q%26A.htm l)


Q23: I have two I-140's from two different employers. My first I-140 was not withdrawn and I was able to capture the priority date with the new employer. I am sure both of them (my previous and current employers) will not withdraw my I-140. Do I still need to start all over again with new employer even if they don't withdraw my I-140?


Discussion: If you mean "new employer" the current employer, no. The new employer can just support your I-485 application when your priority date arrives.

Q22: I have an approved I140 for last 3 years from my current Employer and have just completed 6 years on H-1B and my current H1B is valid till 03/2017. If I change my employer today & my employer withdraws approved I-140, am I going to get H-1B AC21 portability?


Discussion: Under the proposed rule, if the employer withdraws the approved I-140 after 180 days, the USCIS will not revoke the approved I-140 and you will continuously get H-1B portability and extension under AC 21 Act. Besides, there is no specific requirement under the proposed rule that the new job has to be same or similar job of I-140 petition. The requirement of same or similar occupational classification of the approved I-140 portability applies only to the portability of I-140 after filing of I-485 and 180-day passes. In the proposed rule, if you change employment and the job is not the same job for the H-1B exension, it will not affect your green card process because your new employer cannot port the approved I-140 petition to allow you file I-485 application later. Since your new employer will have to start and get PERM and I-140 approval for the new job, the change of job will not affect your green card track. You will have to make it sure that the new employer starts their own PERM and I-140 process and recapture the earlier priority date from the aleady approved I-140 petition of the former employer.

Q21: Will H-1B always extended for 3 Years after 6th Year with Approved I-140, irrespective of project contract end date in client letter? Currently USCIS approves extension petitions only until project end date mentioned in end client letter.


Discussion: No. When there is no proof of work, the agency cannot issue H-1B extension beyond the contract period for the consulting jobs. This practically will not change in the approved I-140 case. Three-year exension under AC 21 Section 104 (c) means "upto" three years and not mandate of three years.

Q20: I have an approved I-140 for five years by now. I changed my employer and have extended my H-1B for three years using the approved I-140. My I-140 employer has not withdrawn and will not withdraw the approved I-140. If my employer does not withdraw and my priority date becomes current, can I file I-485 and I-485 Supplement J signed by the new employer?


Discussion: Probably not. The USCIS is likely to reject such I-485 application. I-485 Supplement J must be signed and submitted by the I-140 sponsor employer since the offer of the I-140 employment is made by the sponsoring employer. Even if the sponsoring employer does not withdraw the approved I-140 petition, the only employer that can support for I-485 application will be the I-140 sponsor employer. The situation is different when you port after 180 days of filing of I-485 application under Section 204(j) of INA. In that case, the new employer can sign and submit I-485 Supplement J when the USCIS issues an RFE or NOID. With this reponse to RFE and NOID, you will be able to get approval of I-485 application without the new employer's PERM or new I-140.

Q19: Is approved I-140 EAD same as I-485 EAD?


Discussion: EADs are all different depending on each program. For instance, H-4EAD and L-2EAD do not affect the underlying H-4 and L-2 nonimmigrant status. Therefore, when it comes to international travel, since you have a valid nonimmigrant visa, you can just return with H-4 and L-2 visa stamp. However, when you get I-140 EAD or I-485 EAD, it invalidates the underlying nonimmigrant status. Therefore, when you make an international travel, you need a special travel permit named Advance Parole. After you return, you also have to work on EAD even if you had a valid employment-authorized nonimmigrant status such as H-1B. "Issuance" of EAD does not invalidate the underlying nonimmigrant status. It is "use" of EAD to work that stops the underlying nonimmigrant status. In the case of I-485 EAD, H-1B nonimmigrant status can be reinstated if you stop working on EAD and the employer files and obtains extension of H-1B. It is not certain the same will apply in 140 EAD case. Remember that the proposed rule does not encourage approved I-140s to get I-140 EAD because of this issue of relinquishing nonimmigrant status.

DMX17
01-05-2016, 12:25 PM
EADforI140- you don't have to do this yo! People can go there and read FAQs. Just saying.:D

Toadie
01-05-2016, 01:29 PM
EADforI140- you don't have to do this yo! People can go there and read FAQs. Just saying.:D

He's got this whole thread for himself ! So much for the "highly skilled".

Eadfor I140
01-05-2016, 07:51 PM
Over period of last 2 weeks, we have more clarity about the rule. Their are 2000 + comments posted about the rule. IV has suggested comments to post .

But it is now the time for member who understand the gravity of the situation. The rule is not productive for those who has I 140 approved. Lets wait for the action plan from IV.

Time is to support IV directive .



Source Proposed EB Modernization Q&A (http://www.immigration-law.com/Proposed%20EB%20Modernization%20Reform%20Q%26A.htm l)

Q24: Under the proposed rule, what clarifications are being made on same or similar job? While waiting for their PD to be current, many people do not accept promotions due to the fear that it might cause issue at the time of applying 485.
1. Does the proposed rule allow people to get promotions (say for example, from technical guy to manager / senior manager etc without redoing PERM again… assuming one continues with the same company)?
2. When the PD becomes current, if one leaves after 180 days of filing 485 to a new employer, does the proposed rule broaden the description of same or similar, so that one can get a "higher" level job?


Discussion: With reference to the first question, in theory there is a distinction between a temporary job and a permanent job. Temporary job does not have to be a same permanent job. PERM and I-140 job is a permanent job which is a future job which can be a same job or different job. Temporary job is the nonimmigrant job such as H-1B, while permanent job is a green card job which is available when green card is approved. While waiting for priority date and even during I-485 proceeding, the foreign worker can take a temporary job which is different from the job offered in the PERM and I-140 petition. In such cases, the sponsoring employer has a higher level of burden of proof that the permanent job that supports PERM and I-140 continously existed and will continue to exist until and after the I-485 is approved. Inasmuch the employer has such proof, the foreign worker can take a temporary job which is different from the permanent job during the green card process. In such case, the adjudicators of the USCIS will be very suspicious of existence of the permanent job throughout the process, but it is the reality that in consulting jobs, the sponsoring employers move around the employees from one location to another location before and after filing of I-485 based on the foregoing concept of distinction between a temporary job and a permanent job. Once I-485 is filed and 180 days pass, the foreign worker can be fairly freely moved around using the Section 204(j) portability provision of the statute inasmuch as the jobs belong to same or similar job definition. This answers to your second question. The definition of same or similar job has been reformed and broadened lately, but still a limit. Inasmuch as the two jobs meet this definition, you can take a promotion. For instance, in software engineer job, there are two different managers: One is a project manager and the other is a sort of department manager. Project manager is not involved with administrative management functions including personnel and budgetary determination, while department manager's function involves such responsibility. If you look at OES Code, Project Manager belongs to 15 occupational code, while department manager belongs to 11 occupational code. Thus if one is promoted to 15 occupational code, particularly during the I-485 waiting period, one is not likely to face any problem since the job belongs to "similar" occupation. So to answer your question of "highter level" job, it depends on the specifics of the nature of the new job. Besides, inasmuch as the employer has a proof that the lower level job continues to exist even though the foreign worker is now in a higher level position which is a temporay job, they cannot deny the I-485 application. However, the best policy will be to keep the two jobs in similar or same occupational classification.