I have an Approved I-140 from a previous job. My new employer has initiated the PERM. How can I make sure that the attorneys use the priority date from my old I-140?
Even if your lawyers do nothing to use the old priority date, that priority date is your right. The government itself is supposed to run a data sweep. Check their databases and give you the earliest date you are entitled to. If none of the documents reflect that you've been given the earlier priority date it is still not a problem. Hence there is no other procedure required for you to follow. You do not have to be overly concerned about the attorneys using the old priority date.
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
I-140 was approved and then revoked in 2011. Can I keep my priority date and also apply for I-485? What is the deadline for filing I-485?
It depends on a couple of things. First of all the regulations changed in your favor on January 17, 2017. Therefore, if the revocation occurred before January 17, 2017 chances are you might have lost even your priority date. On January 17, 2017 the laws changed and now the rule is if the moment your I-140 is approved the priority date is yours to keep. The second rule is if the I-140 stays approved for 180 days you also have the right to extend your H-1B and your spouse their H-4. There are two different rights - right to keep your priority date the moment I-140 is approved and the right to extend H-1B if the I-140 stays approved for 180 days. Hence this is a protection even if the employer revokes your H-1B.
For more discussion on this matter you can have a look at my older blog entries.
https://www.immigration.com/blogs/
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?
First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.
There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. More
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
I have been on H1B for almost 5 years and I recently got my PERM approved. My employer will file for I-140 soon. My question is related to priority dates. I saw one of your videos where you explained that the priority date practically belongs to the employee. So does that mean when an employee gets I-140 approval then the employee can change employer at any time and keep the same priority date for the next filing with the new employer?
What happens if an employee leaves or gets laid off after a month of getting i140 approval and the old employer decides to withdraw/revoke the application? In this case, can the new employer use the same priority date or get the new one for the employee? If a new employer gets the new one then what happens when an employee's 6 yr H1B term has finished before new i140 approval comes, does he/she get extension on H1B based on new application?
As per the regulations dated 17, January 2017 the moment your I-140 is approved the priority date is your property not the employers. Therefore even if the I-140 is revoked the same day and if it was approved, that priority date is yours to keep. You can take it across to any employer. If you go to another employer and if yours is a labor cert based case being filed you have to redo the PERM and the I-140 but you will carry the old priority date which is a big advantage.
In addition to your priority date, if the I-140 remains approved for 180 days, you can continue to extend your H-1B with any employer after six years. They cannot take that right away even if they revoke your I-140.
I have two approved I-140`s in EB-2 from two different companies with same A# on them. One with 2009 PD and other with 2011 PD. I am working for the company with 2011 PD . 2009 case was approved after the 2011 case so we could not port the date at the time of filing for 2011 case I-140. Now my question is do I need to file for amendment to port the 2009 date? Or am I eligible for filing I-485 without the I-140 amendment? Both I-140's are alive and employer did not withdraw any of them.
PD (priority date) date transfer is supposed to be automatic. We don’t have to do anything about it and it is my understanding what USCIS does is they do periodic sweeps in fact several times a month. They do a sweep like queries of their database and whoever is entitled to whichever priority date at the earliest they automatically assign that to you. So if you have one I- 140 approved earlier another I-140 going on or approved they will automatically assign you the earliest priority date to which you are entitled. That may or may not reflect in your approval though. So just because it does not reflect in your approval it doesn’t mean that you are not going to get the earlier priority date. You can confirm it by opening a service request. You can confirm by asking them your priority date.
Hence the answer is you are eligible for filing I-485 automatically when the 2009 date becomes current. All you have to do is attach a copy of the earlier approval notice with it along with the current approval and you should be fine.
Release Date
U.S. Citizenship and Immigration Services today announced that certain asylum applicants can now file Form I-765, Application for Employment Authorization, online.
Hello, Let me start with my question: Is it possible to port priority date from an existing employer sponsored EB2 petition to a new EB2 NIW petition ? I am an Indian citizen with a masters degree in Electrical Engineering from Univ. of Maryland College Park. I have a pending EB2 petition (approved I140) through my employer but am also exploring a self petitioned EB2 NIW application in parallel. I would like to understand if the earlier priority date from my employer sponsored petition can be ported to the NIW petition, if approved. Please advise. Thank You Mathew
Yes. You can port the PD.
Given the current situation with tech layoffs, I wanted to understand the options available for people in my situation.
I’m currently working in the US on H-1B and my GC application (I-485) with PD July 2014 and 485 is in “Case remains pending”.
I have 485 EAD approved till 2024 and Advanced Parole is still pending.
Now if someone switches to EAD and their date becomes current before they can find a job. What are their options?
Also, do we have any info on what the status “Case Remains Pending” means?
1. Switching to EAD is very easy. There is no formal process for it. All you have to do is when you want to convert from H-1B or if you have been laid off present your EAD as documentation of your authorization to work.
2. Travel back into the United States with an H-1B visa and that of course comes after you get an approval from the USCIS.
3. In a case like this you should get your approval. Make sure you get the next job in the same or similar field. Keep some documentation that shows they are in the same or similar field.
What is I-485 Pre-adjudicate/Pre-adjudication?
How soon must I join my future green card employer?
Situation -
I have my EB2 India PD as March, 2008. I applied for I-485 in Oct 2014 (Future based GC application). My PD is not current as of yet but I have got an RFE for expired medical form I-693 ONLY in Oct, 2015.
Question: What is I-485 Pre-adjudicate/Pre-adjudication?
You are at the last step of the green card process. Your priority dates became current, you filed the I-485, then the priority dates slipped back two years, at this time USCIS has two choices. They can either put your file in their filing cabinet and forget about the case, until the priority dates become current again. Or they can sit down and can say look we have time, let’s go over the case, adjudicate all the details, decide that the case is completely qualified to receive a green card, so we pre-adjudicate, decide that the person is entitled to get the green card. Make a note on the file. If you need some documents, we send an RFE get the documents so when the priority dates become current again all we have to do is issue the green card. That’s pre-adjudicate.
Question: How soon must I join my future green card employer?
There is really no rule of thumb. But within a commercially reasonable period of time. Three to four months maybe, after approval of the green card, you should join the future green card employer. In your particular case that appears to be a requirement sometimes it may not be a requirement because of AC21 and remember AC21 portability is available even in future employer green card cases.
How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc.
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
Priority Date (PD) is the date when your green card visa numbers are available. It means that you are entitled to get your green card. It doesn’t mean you can get it right away. But it means you are in a stage were you are about to get your green card. So Priority Date is usually the date on which your application was started. In case of family based petitions Priority Date is when I-130 was filed. In the case of Employment based cases it is based upon when PERM was filed. Employment based cases were PERM is not involved, direct I-140 is involved such as National Interest Waivers, EB-1s - Priority Date is the date you file the I-140. Your Priority Date depends upon the date your case was started. That’s one thing you got to worry about.
When you go to Visas Bulletin which is a monthly publication of the US Department of State it tells you what visa dates are expected to be curbed or in other words where the queue is for the next month. So in December they will issue predictions for January, in January they will issue predictions for February, then on top of that you have to worry about processing times. Sometimes for e.g.: in US Citizen’s cases there is no Priority Date back up, dates are immediately current for e.g.: spouse of a US Citizen, parent of a US Citizen, minor unmarried child of a US Citizen, there are no Priority Date issues here. In these cases, you have to worry only about the processing times. So when you file the form the form takes set amount of time to process. Now a new concept has been started a couple of months ago, if you go to the USCIS website it tells you if you are in the United States this is the date when you can file your last step of the green card process. If you are outside USA this is the date, you can expect to receive further paper work from the consulate. It doesn’t mean you are going to get your green card right away but you are eligible or close to getting it.
Here is another variable. How much time is it taking at that consulate to schedule interviews. Some consulates are heavily overworked. Some consulates are relatively less worked. So that’s the fourth variable. First variable was Priority Date, second variable is processing times, third variable is final action dates which is also the part of Visa Bulletin a slightly different table, and the fourth is the local processing times.
Question: How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc. Her PD is 1 Feb, 2011 visa category F2B. She has already submitted dox to NVC. When she was waiting for the visa date she turned 21 and moved to f2b cat.1. When do you think it will be? Which table to consider? At the Visa bulletin one, I mean.
First of all, if her Priority Date is current normally within a few months, probably less than six months. At the Visa Bulletin the final action table tells you approximately when she can expect her final documents.
Question: Once the other parent becomes citizen in USA would it be helpful to submit another petition for her? Would you advise it to be in the safe side?
You can. You can file multiple cases for the same individual. That is not a problem. As long as you see some gain in it depending upon the country she was born in, in filing through two separate categories you can certainly do that.
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FAQs: Job loss situation - Alternatives and return options for H-1B visa holders with approved I-140 || Remote work for a U.S. startup: Starting off on managerial duties from India before L-1 visa filing
I saw some online forums stating that if I-140 withdrawn you can retain your PD date. Is it true under current circumstances? What is difference between I-140 Withdraw vs I-140 Revoke? If both are not the same, in which cases employers to for withdraw.
A revocation means that an I-140 was initially approved and then subsequently canceled. Therefore, a revocation implies there was an initial approval. If a case has never been approved, it cannot be revoked; it can only be withdrawn or denied.
For example, let's consider a scenario: I, as your employer, file your I-140 application, and if USCIS informs us that they are denying the case due to certain problems, this constitutes a denial. This is a clear and understandable situation. However, if I, as your employer, submit a cancellation request before the case is approved, that is referred to as a withdrawal. On the other hand, if the case is already approved, and I decide to inform USCIS that I wish to cancel it, this is categorized as a revocation.
Another circumstance that leads to revocation is when USCIS has initially approved a case but later issues a notice of intent to revoke the approval. Additionally, if they discover any fraud, this is a grave matter that should not be overlooked, as it carries criminal implications and can result in a permanent bar for the employee from entering the US.
In summary, when a case is approved and subsequently canceled, whether by the employer or the government, it is considered a revocation. However, if the case is still pending, the only options are withdrawal or denial.
1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months. 2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave? If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?
Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1 and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.
And the second part of the question was can I take maternity leave on H-1?
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.