There may be a typo in your question. If the first I-140 was filed within 180 days of the PERM validity period, the second or subsequent I-140 can be filed outside the 180 days. No problem.

I see no problem with interfiling as long as the 140 amendment is not approved (it should have been filed as a "new petition"). You need your lawyers' review and the final decision, but legally, I see no issue.

Q. Can I re-capture the unused time (time stuck in India for almost 3 years) beyond my first 6 years of H1-B with this new firm/petitioner?
A. Yes, you can.

Q. If yes, can I port my old I-140 (& old priority date) to the new H1 petitioner after coming to the US? What is the porting time frame after coming to the US? Is Premium processing available for porting old I-140 (& priority date) to the new employer?
A. Priority date can be ported for sure if your I-140 stayed approved till at least 17 January 2017, when there was a change in regulations in favor of the employees. Earlier, the situation was uncertain if the employer withdrew the I-140. Under the current regulations, that is not a problem for priority date transfer.

Q. Since my priority date is current, I wanted to know if my new employer can file for AOS upon my arrival in the US?
A. Adjustment of Status (AOS) is not possible. The new employer will have to start the green card all over again, carrying the old priority date.

Prior to January 17, 2017, the rules about priority date retention were uncertain. If your earlier I-I40 was not withdrawn or revoked, you should be able to keep your priority date.

Theoretically, an I-140 does not require you to be continued to be employed by the petitioning employer. You could leave after applying, but if there is an RFE, the employer would not be motivated to respond to it. As a practical matter, there is a second difficulty as well. Could your intention to continue to work at the employer be called into question because you had a preconceived intention to leave? That does not appear to be a major issue with the USCIS, but you never know.

Watch the Video on this FAQ:

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485

Video Transcript

1. Usually if you do an H-1B transfer or if the I-140 is revoked that becomes their source of knowledge.

2. Absolutely, the regulations only require that when asked, you should be able to produce an offer of employment for the same or similar job and file Supplement J. This is only when asked.

3. If you have a I-485 pending you are always allowed to stay in the United States, but make sure that you have an EAD.

4. Normally an H-1B denial has no effect on the Adjustment of Status I-485. FAQ in detail...

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Watch the Video on this FAQ: I-485 AOS filed - Maintaining H-1B status after getting EAD/Changing jobs after I-485/Being unemployed/Start own business, etc. (Filed for I-485, EAD, AP along with EB-2 to EB-3 I-140 downgrade)

Watch the Video on this FAQ: Job Change after I-140 Approval, Before I-485 Submission

Video Transcript

You have to start your green card all over again, no question about that. FAQ in detail...

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Watch the Video on this FAQ: Eligibility for and the process of EB-3 to EB-2 Porting

Video Transcript

You can always go up and you can always go down as long as your PERM was filed as an EB-2. If you filed your PRM as an EB-3 then you're not going to be able to upgrade to EB-2. But if your PERM was filed as an EB-2 you can downgrade I-140 EB-3. You can go back upgrade to EB-2 if you already have an EB-2 approval. You can file a downgrade second case as EB-3 with the same PERM. FAQ in detail...

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Watch the Video on this FAQ: Supplement J timing and joining previous Employer

Video Transcript

You have to discuss your case with your lawyers.  I would recommend having your lawyers review your honest intentions make sure that everything is all right and then if you file the I-485 under whatever circumstances, Supplement J can be used after 180 days. FAQ in detail... 

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https://youtu.be/p6-qI640O0E?t=109

Watch the Video on this FAQ:

Priority date and original I-140 approval notice

Video Transcript

So once again the priority date is yours the moment the I-140 is approved whether it is revoked the very next day, but if it stays unrevoked for 180 days whether or not you're with the same employer you also carry forward the right to extend your H-1B. FAQ in detail...

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FAQ: Issues in changing employers after I-140 approval

Video Transcript

1. Absolutely.

2. Absolutely. The I-140 priority date gets attached to you. Therefore, wherever you go, that's where the priority date goes.

3. No, because what is being transferred is the priority date and you can transfer that to any petition.

4. Yes, there is an issue about the one year filing date, but it does not revoke your I-140. FAQ in detail...

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Watch the Video on this FAQ:

Changing jobs while I-140 pending and change in job title

Video Transcript

No problem at all with the job titles and the only requirement is on the date the I-140 is filed there is an intention to continue with the job. FAQ in detail...

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Watch the Video on this FAQ:

Working from Canada on or off H-1B

Video Transcript

1. Sure and there are no restrictions on time.

2. No, not really. Depends on how the PERM was filed. You should talk to your lawyers. Regarding I-140 yes of course as long as at least one day of that approval period was on or after January 17, 2017.

3. No impact on your H-1B renewal.

FAQ in detail...

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Watch the Video on this FAQ:

Implications of the 240 days grace period

Video Transcript

When you file your petition timely you have a 240 days grace period to continue working even after your current status expires. That is a very big advantage, but the problem is what if the government takes more than 240 days to adjudicate. While the case is pending you can work for only 240 days, but you can stay an unlimited amount of time in the United States as long as the case is pending.

In the context of an H-1B if you have filed for an extension to change you can continue working as long as the case is pending, but if you have filed for an extension without change, you have got 240 days. FAQ in detail...

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Watch the Video on this FAQ:

Covid Coronavirus H-1B employee furlough's

 impact on green card and H-1B

Video Transcript:

First of all you haven’t lost status in my opinion because you can always claim with the government that you are maintaining status and the non-payment of the full salary is no fault of yours. I don't think you can do much during the coronavirus times. Don't worry about status. You have not done anything wrong and definitely you are not accruing unlawful presence. At the termination of this coronavirus period you can continue the same employment, but I would rather have you change employers and get another H-1 then file a complaint against the employer because they have to pay you a hundred percent of your wages. They cannot just pay you twenty percent. That’s illegal. FAQ in detail...

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Watch the Video on this FAQ:

EB-1C International Managers/Executive Green Card portability

Video Transcript:

1. Even if there were a substantial difference in the salaries I don't think it is a major issue. The requirement of the law is that the jobs must be same or similar. The idea that someting is similar presupposes that they are not the same. I don't think salary is going to be a problem.

2. As long as the roles and responsibilities are the same and you are performing substantially the same job duties I do not anticipate any problem.

3. Regarding documents don't do it yourself. Get a lawyer. You need to file supplement J and it is something that should be assessed by a lawyer before it is filed. 

4. AC21 is good. Even if they cancel your I-140 it is not going to be a problem. Once I-140 is approved and it stayed pending for 180 days you are covered from every possible angle. In your case you are protected from every possible angle, even if the employer revokes the I-140. FAQ in detail...

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Watch the Video on this FAQ: I-140 revocation

Video Transcript:

You should file a  Freedom of Information Act (FOIA) request online. You should be able to file and ask for all immigration related documents relevant to your case. They should be able to give you any documents that can prove that your I-140 was approved. Remember, even without the proof you should be entitled to almost all the benefits because the I-140 is the employer's case and you may not have a copy of the approval but you are the beneficiary of that case so the government should cooperate.

If you do not have an issue with extension beyond six years you are fine. Even if they revoke your I-140 one day after your I-140 approval, they cannot take away your priority date. That can be transferred to another new green card. If they don't revoke the I-140 or if they revoke it after 180 days your spouse will be entitled to H-4 EAD. But if they revoke it before the 180 days then both you and your spouse will have to wait until your second I-140 to a new employer is approved. FAQ in detail...

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Watch the Video on this FAQ: Risk for green card process

in joining a small company, unfamiliar with immigration

Video Transcript

If the company is willing and able to support your application by all means join a big or small company, it does not matter. FAQ in detail...

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Watch the Video on this FAQ:

Consequences of losing my job on H-1B and revocation of I-140

Video Transcript:

The moment the I-140 is revoked nobody can take away your priority date. The only time priority date can be taken away is if the I-140 was approved in error or through fraud. On the other hand, once the I-140 has been approved and stays approved for 180 days not only do you keep your priority date, you also keep the right to keep extending your H-1B beyond six years with any employer. So180 days is a great time to wait. These regulations changed on January 17th, 2017. Any cases that occurred after that date would have to go by these regulations. FAQ in detail...

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Watch the Video on this FAQ:

Change in green card job responsibilities

and/or job title during the process

Video Transcript:

The safest thing is to just start a new green card and once the new I-140 is approved, it automatically inherits the priority date of the old green card. So changing a couple of responsibilities does not change the job, nor does it destroy your green card, but why take a chance. That's the way I look at it. FAQ in detail ....

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Watch the Video on this FAQ:

Impact on green card of job promotions

Video Transcript

Overall, the safest thing is if your priority date is backed up go ahead and start a new green card. FAQ in detail...

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Watch the Video on this FAQ: Options for career or school,

while employment-based green card is pending

Video Transcript

1. The moment your I-140 is approved the priority date becomes yours. But you will have to start the green card process all over again.

2. I would be hesitant to say that it is a safe option.

3. If you go to India the only thing you will keep is your priority date and the priority date will remain your's forever. The only time you lose your priority date under the current regulations is if your I-140 is revoked for fraud or misrepresentation. FAQ in detail...

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Watch the Video on this FAQ:

Options to stay in the USA after expiration of H-1B

Video Transcript

1. I don't think you would get the tourist visa or tourist status but you can apply for it.

2. 60 days is the total time.

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Watch the Video on this FAQ: Getting H-1B extensions based on of I-140 approval of spouse

Video Transcript

The answer is Yes. If you leave before the I-140 is up, before the PERM is approved, you will not get anything out of that process. If you leave after I-140 approval you will still have to start your green card all over again, but you definitely carry with you, your priority date. On top of that you may also be able to carry in the right to extend H-1B with any employer as long as the I-140 was approved and stayed approved for 180 days. After that, even if it is revoked by the old employer your rights are not disturbed. More...

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Listen to the Audio on this FAQ:

Is H-4 EAD tied to an employer of H-1 holder or to an I-140?

Video Transcript

An H-4 EAD is neither tied to a particular employer nor to a revoked I-140, if the I-140 stayed approved for 180 days and any one of those 180 days fell on January 17, 2017. More...

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Watch the Video on this FAQ:

Downgrading a case from EB2 to EB3 for priority date advantage

Video Transcript

1. Your EB-2 does not get affected. You can file EB-3/I-140 and I believe you can file a I-485 also if your dates are current.

2. Just the I-140. More...

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Watch the Video on this FAQ:

What to do when the 240 days H-1B work authorization is expiring?

Video Transcript

1. You can stay in the United States. You just cannot work. So while your timely H-1B extension is pending you are not illegal, even after 240 days. The only thing is you will not have work authorization. You can also ask for an expedite at that point of time. It is worth trying. Even if the premium processing is not available expedited processing is still available.

2. You don't have to re apply for the extension. The pending case would work. The only thing is since you left while the case was pending you would require to get a visa stamping and come back again. More...

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Watch the video on this FAQ: The logistics of porting a priority date, how to?

Video Transcript

Once the I-140 is approved the priority date immediately becomes your property, even if the I-140 is revoked. This law came into effect on January 17, 2017. Hence that date is yours whether or not it is reflected in a follow up I-140 approval. USCIS should be giving you that date automatically. You need not have to do any other process for it. They run regular screening or scans of their system and they assign to you the earlier priority date to which you are eligible. That's the way it normally works. More...

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Watch the Video on this FAQ: EB-2 approved applying for EB-3

Video Transcript

This is mostly a question of procedure and policy. The USCIS has been indicating that if you have only one I-140 approved under EB-2 but you want to file under EB-3 you have to file another I-140 using the copy of the same labor certification - perm application and get an EB-3 approval first. More...

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Watch the Video on this FAQ:

Status expiring during the pendency of an H-1B extension

Video Transcript

1. No, and there is no NTA even if it gets denied. You can leave the United States within a short period. After the denial you won't get an NTA.

2. You don't have to do that. There is no question of unlawful presence or being out of status when timely filed extension amendment or transfer request is pending and if you choose to leave the USA for whatever reasons you can always get a visa and come back. Traveling outside the USA does not abandon your H-1request. More...

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Watch the Video on this FAQ:

Continuing employment-based green card

while moving outside the USA

Video Transcript

1. One is to go through the consular processing in Canada or second is to get an H-1B status approved. Since you are not subject to the quota for six years after approval you can come back on H-1B and file AOS.

2. An old H-1B certainly becomes a red flag issue for the CBP. It is definitely common for them to be concerned about this sort of a situation.

3. That depends if the job is in - house for eg: the company is a product development company and they intend to hire you in - house then a letter from the company should be good enough.

4. Pay stubs are not necessary, but if you are working for this employer from outside the United States you can certainly present pay stubs to prove that you were working for this employer. That is not directly relevant but it does show an ongoing relationship.

5. Definitely. You don't have to reenter the lottery for six years after the last H-1B approval. More...

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Watch the Video for this FAQ:

Transfer of priority date on an I-140 -- process

Video Transcript

If your priority date becomes current at any point of time you can just go ahead and file your I-485 with copies of both I-140 approvals attached. I am not really sure the need for amendment. You are supposed to be entitled to it automatically and usually a letter or a service request made over the telephone should be enough and if nothing else the dates become current file with both the I-140 copies attached. More...

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Watch the Video on this FAQ: How can I downgrade from EB2 to EB3 and the consequences

Video Transcript

If we have an EB-2 approved I-140 we apply for an EB-3 approval on the same form or you can file EB-3 I-140 and I-485 concurrently if the dates are current. If you file a I-485 that is prematurely filed when the priority date of EB-2 is not current, if EB-3 is denied on which basis you had filed the I-485 then the I-485 will also be denied. I would want your lawyers to review your case very carefully. Make sure that you don't have any other issues. If the second EB-3 filing gets denied it should not have any impact on the already approved I-140 unless the second filing reveals some problem with the case that was not addressed earlier. More...

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Watch the Video on this FAQ: Can I join my old employer if the H-1B transfer is denied?

Video Transcript:

1. The answer is No. A prior approved H-1B is not overruled by a subsequent H-1B through another employer. If you have signed any contracts that's a different issue, but as far as immigration law is concerned, having one, two, three or even twenty subsequent H-1B approvals have no effect on a previously approved H-1B.

2. The answer is Yes. 

3. Not at all. As long as your employer A has not been revoked and employer B/A still maintains your status you are fine.

4. Any employer or any number of employers can file for your green card as there is no limit. The only issue is are you doing it in good faith. Is it an honest intention to join them upon approval of the green card. These are issues that you should discuss with your lawyers who are processing your green card. More...

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Video Transcript:

1. Yes, you can apply both change to H-4 and H-4 EAD concurrently. Therefore even though you are working for employer B your wife can derive the same benefit as you would from the earlier I-140 approval.

2. No. Even though the I-140 was from the previous employer.

3. You can change employers as many times as you like and once your I-140 has been approved 180 days there is no limit to how many employers you can change and how long you can keep getting extensions of your H-1B as long as the dates are not current. If the dates become current then you can get only one year extension as far as I recall.

4. The answer is No. Both remain valid in their own right and you can derive the maximum benefit whichever is better for you out of the two. More...

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Watch the Video on this FAQ: Applying for H-4 status while on parole

Video Transcript

You cannot really get a change of status because parole is not really status. It is just authorized stay which is legal, but not full status. So basically if you want to convert back to H-4 , it does not require any prior approval from the USCIS. You can just take the spouses H-1 approval and go outside USA get your visa stamped and come back. When you enter using your H-4 visa you are back on being on H-4 instead of being on parole and if the I-140 or I-485 etc., is still pending you can of course keep extending your advance parole. You can apply six months ahead of time before the expiration of the parole. More...

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Watch the Video on this FAQ: Getting promotions or changing job description while green card is pending

Video Transcript

If we are speaking of a green card filed through PERM it is complicated because any substantial change in the job requires you to refile the green card unless you have the intention to go back to the old job when you get the green card. 

One point at which you can change jobs, whether job descriptions or job titles or even employers is when your I-140 is approved and your I-485 has been pending 180 days, that's the AC21 portability. More...

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Watch the Video on this FAQ: Can a green card be filed for me if I am on H4 or L2 or F1 – – any status other than H-1B or L-1A?

Video Transcript

Yes. A green card can be filed while you are on any status. But while filing a green card for visas like F-1, F-2, J-1, J-2 can be complicated in some ways. Consult your lawyers.  Make sure you got every part covered. If you are born in countries like India or China or any other countries that are very backed up you will have to be very careful and make proper plans before you file for a green card directly from any of the other statuses but there is no law that says you cannot do that. More...

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Watch the Video on this FAQ: Changing jobs after I-140 approval

Video Transcript

When your I-140 is approved your priority date is yours to keep even if you leave that employer the very next day and go and join a totally different job. It does not matter if the job gives you a higher salary or a lower salary or has a completely different job profile because all you are carrying forward is your priority date. So when you want to carry forward your priority date what you do is you take your I-140 with you. In addition to that once the I-140 is approved and stays approved for 180 days not only you carry on your priority date, you also carry the right to extend your H-1 through any employer and there is no limitation on that. More...

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Watch the Video for this FAQ: Can EB-2 approved file for EB-3?

Video Transcript:

The way I think it will work is if you have both EB-3 and EB-2 approvals already good for you. You can use either one. If you have an EB-2 approval and you want to take advantage of the EB-3 upsurge in the Priority Dates, file for an EB-3 I-140 with a copy of the same PERM application. If the I-140 is approved quickly great, if not and the dates become current while the I-140 is still pending, with the receipt you can file an I-485. So you will have an EB-3 pending with a I-485 coming along. Now if tomorrow the dates become better, moving for EB-2 because you have both I-140s in the works, one approved and one pending or maybe both approved by that time, government will automatically give you the benefit of which ever category is moving the fastest.  More...

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FAQ: Effect of I-140 revocation on priority date, H-1B extensions through any employer, etc.

Video Transcript:

Beginning January 17, 2017 the law is that if your I-140 has been approved and stays approved for 180 days and atleast one or two days past Janaury 17, 2017, because if it was revoked after 180 days but before Janaury 17, 2017 when the new regulations came in you would have to look at other things but not those regulations. These new regulations say first of all the moment your I-140 is approved your priority date is yours to keep. You can take it to any employer, you have to start the green card all over again, but you carry the priority date forward.

The second thing that it says is that if in addition your I-140 stays approved for 180 days you will retain the ability to extend your H-1B on three years any number of times as long as the priority dates are not current with any employer for any job. So once I-140 is approved and stays approved 180 days your rights to extend H-1 beyond six years with any employer are quite secure. More...

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Watch the Video on this FAQ: At what stage should I join my future green card employer?

Video Transcript:

As far as only one aspect of the case is concerned, which is the ability to pay wages. So when your employer starts your green card from that date forward they must show that their tax returns have enough money to pay you. If on the other hand the employer has a very healthy tax return only their lawyers can tell them, then it doesn't matter when you join them so if you are worried about the ability to pay wages, it is better to join before filing the PERM. If the tax returns are extremely healthy, then you can join at any stage you like either before or after the approval of the green card. I-140 can be affected because of the ability to pay wages, but if the ability to pay wages is strong you can join a future employer anytime before or soon after the approval of the green card. More...

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Watch the Video on this FAQ: H-1B and green card transfer from a non-profit organization to for-profit

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

     b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

    c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

    d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

    e. Joining a Master's CPT and filing a cap yes, that's definitely an option.   

More....

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Watch the Video on this FAQ: The 180 rule for priority dates/H-1B extension

Video Transcript

Beginning January 17th  forward, some of that goes backward too, as soon as your I-140 is approved the priority date is yours even if the employer revokes the I-140 the second day or the same day so the priority date becomes yours the moment the I-140 is approved. If the I-140 gets approved and stays approved for 180 days and the employer then sends a letter to revoke the I-140 on the 181st day not only do you keep your priority date, you also maintain the right to keep extending your H-1 and I believe your wife's H-4 EAD as well even if the old employer revokes your I-140. The 180 days is the time for which the I-140 should stay unrevoked. More...

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Watch the Video on this FAQ: If H-1B transfer is denied, can I go back to my old employer? When does AC21 job portability

begin? Can H-1B be extended through a new employer while I-140 is in process?

Video Transcript

1. You can apply for an extension based upon two reasons either the first year anniversary of your green card filing that your PERM was filed a year ago or based upon I-140 approval. So, yes you can file for a one year extension if PERM was started a year ago.

2. The answer is yes, as long as one of the two things exist. Either the I-140 has not been revoked in that case you can use it for extensions or the I-140 was revoked by the old employer, but after 180 days of approval in both cases you can extend your H-1 through some other employer like employer B even while employer B's own I-140 is still in process. More...

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Watch the Video on this FAQ: Change of status to student F-1 while green card is in process

Video Transcript

Yes, obviously you can try. I think what happens is when you are going to a good school, chances are government will accommodate and they will allow you to go back on F-1 because it is definitely a promotion path a career progression for you. I can't predict if the government will be reasonable or not, but reasonableness would require that they allow you to convert to F-1. Under the Trump administration I do not know how things are going to work out, but as far as predicting your chances are concerned I think you certainly have a shot. More...

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Watch the Video on this FAQ: AC 21 job portability, changing jobs before 180 days

Video Transcript

I do not see any issue other than the time issue so if you are able to have the I-485 pending for 180 days you are good. More...

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Watch the Video on this FAQ: Change in job title after getting a green card approval

Video Transcript:

We would have to look at your job title and job description in the green card and see how different it is from the position you took on. Unfortunately for consular processing people, we don't have that same law - the AC21 same or similar job law. So I cannot really comment that this is going to be or not going to be a problem. Generally speaking, if you are going through Adjustment Of Status process and your I-485 has been pending 180 days, your I-140 is approved that means you are covered by the AC21 rules. In those circumstances, a change in job title to a same or similar job is not a problem. More...

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Watch the Video on this FAQ: Changing jobs after I 140 approval, returning to the old job, etc.

Video Transcript

If you look at the situation academically this can be a problem and they should start the green card all over again why because the basic jurisprudence or the legal theory of a green card is that there must exist a job that continues to exist without interruption so when you leave the employer A with the intent not to come back or the employer no longer has the intent to hire you back it can be argued that the continuity of the intent of having a job that the employer wants to give you and that you want to accept has been interrupted. So I guess employer A can definitely start from where you left as long as there was an intention to keep the job open and for you to come back which I think is difficult to argue in your case. You should talk to your lawyers. More...

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Watch the Video on this FAQ: AC21 green card portability for a lateral move from developer to analyst

Video Transcript

I think what you should do because this is an important benefit for you, you should have your case evaluated by a lawyer. Show them the job description of the next proposed job - salary, title, job requirements and let them help you decide. More...

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Watch the Video of this FAQ: Applying for green card while holding H-4 status; applying for green card and permanent

residence for another country simultaneously

Video Transcript:

1. You have to go through your lawyer or your employer. You won't have access to it, but definitely, there is a website.

2. Within 180 days of the labor approval.

3. Yes of course. 

4. It does not. 

5. I don't see any problem with it, I know that at the border the Customs and Border Protection (CBP) sees that you have got two permanent residence applications going on sometimes they can raise a stink about it but in my opinion that's completely unjustified. More...

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You can most definitely file H-4 and EAD together. Your green card process can continue even though you have changed your status.

Watch Video on this FAQ: New regulations, effect on layoff after I-140 approval

Video Transcript

1. Having an I-140 approval that stayed in existence for 180 days does not protect your current status by itself so with the new rule you've got that 60 day grace period to file for an H-1 or any other kind of change of status after the layoff so you have got that 60 day grace period you could try applying for a tourist visa if nothing else works out.

2. Yes. You can use Compelling Circumstances EAD. See my blog for more details.

More...

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Audio FAQ On: Child Status Protection Act in employment-based petitions

Audio Transcript

Child Status Protection Act (CSPA),  in employment-based petitions will allow you to take advantage of the time your I-140 is pending. So if your I-140 was pending for 8 months your child can file I-485 with you if the dates become current until 21 years, plus 8 months. Hence whatever time your I-140 was pending that time becomes an additional grace period for the child to file I-485 with you. The only advantage you will get is the dependency of the I-140. Other than that, there is no advantage. More...

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Audio FAQ On: Is a copy of I-140 approval required to extend H-1 B?

Audio Transcript

As long as the I-140 was not revoked before 180 days were over and it was good until January 17 you are fine. There is no need to provide the I-140 approval notice. More

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Watch the Video on this FAQ: Compelling circumstances EAD

Video Transcript

I have given a few examples on my blog please look at that.

Your surgery was a good four years ago I don't know if there is something particularly difficult about your medical situation, but normally people with bypass surgery resume their normal lives. In your case, like I said if there are any particular circumstances, you can certainly apply for compelling circumstances EAD and you can keep getting that renewed. More

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Watch the Video on this FAQ: Changing jobs and Supplement J

Video Transcript

Supplement J is essentially a replacement for employment letters. See my blog for the rules. 

The purpose of Supplement J is to confirm that the job offer from the employer and there is the intention of the employee to accept that job. It is also used to request portability. 

.......When must you file Supplement J?

When you are filing I-485 and I-140 separately. If you file them both together with the same employer, you don't need to file Supplement J. If you are filing them separately you file I-140 first and then you filed I-485 then you have to file Supplement J with it. 

Second, when USCIS requests it, you got to provide it. So if you have a pending case, you've never given Supplement J and UCIS has asked for it, you got to give it. 

Third, is when you do portability. When you change to a similar job you should file at that point Supplement J.  If you want to take benefit of portability you have to file it. But if you say I am going to be here for 3 months and then change jobs again you could skip Supplement J. More...

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Watch the Video on this FAQ: Filing green card through multiple categories or employers and/or family simultaneously

Video Transcript

1. The answer is yes. You can file green cards through as many categories as you want to. Both employment as well as a mixture of employment and family or investment. Any number of green cards can be filed as long as they are being filed honestly.

2. I don't see why not. 

3. It doesn't have to.

4. It all depends on the facts of each case but at least theoretically it is possible. More...

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Under the law effective from 17 January 2017, an employee will retain their priority date once an I-140 is properly approved, even if a day later the employer asks for a revocation. There is no requirement that the employee be employed with that employer for a certain period of time.

Watch the Video on this FAQ: Change of Job Description / Job Location on PERM and I-140

Video Transcript

1. The job title and job description are different things. As for the location, that depends on the PERM. If there is a complete change in the job description and job title it is still ok if you intend to come back to the old title once the green card is approved. See how the location, the title and job description is for the future job.

2. Yes of course. This kind of language we put all the time in the PERM application. More...

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Watch the Video on this FAQ: Consequences of I-140 revocation

Video Transcript

1. If I-140 is revoked within 180 days of its approval you only get to keep your Priority Date. You do not get to keep your right to extend your H-1.

2. H-4 is completely dependent on the H-1, as long as you maintain your status I don't see any reason why the H-4 EAD cannot be used.

3. The 16 day period is not automatic. If you were laid off due to circumstances beyond your control you can ask the government to give you the 60 day grace period. If you find a job and file H-1 within that time. More

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Watch the Video on this FAQ: Do jobs have to be same or similar when I port my priority date?

Video Transcript

1. When you port the whole job; I-485 is pending 180-days, jobs have to be same or similar. When you are just porting the Priority Date in the I-140, jobs can be completely different. You have to start the green card from the PERM process, but when you are just porting the Priority Date there is no problem.

2. The answer is No. As long as you are maintaining your H-1 status and she is maintaining her H-4 status. More...

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Watch the Video on this FAQ: Changing employers after 6 years of H-1 are over

Video Transcript

1.Yes you can file for an extension. That's all you need a copy of the approved I-140. It is safe to change companies. The law is once your I-140 is approved and stays approved for 180 days, even if your old employer revokes your I-140 you have the right to keep extending your H-1 through any employer.

2. I think you can apply 180 days. The new regulations allow you to file for EAD extension 180 days ahead of time. Have it double checked. It is not a guaranteed right but USCIS has said that they will accept that unless they post it differently on their website. So always double check the information. More...

Watch the Video FAQ: Can I go back and join an employer who has my I-140 approval, but I left them

Video Transcript

Yes, you can go back to your old employer, but again as long as the job was continuing to exist you can go back to the I-140 employer and you can pick it up from the I-140 process itself. More...

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Watch the Video on this FAQ: What if I never joined the employer who sponsored me for green card?

Video Transcript

I believe your circumstances are so unique I think what you could do is at least come to the United States as early as you can and take up that job even if it is for a few pay periods with the intention to stay in the United States as much as possible. You can also bring your mother on a tourist visa and keep extending that as well. At the very least you should come to the United States present yourself for work, whether you do it through an email or whatever method and if the company says they don't have a job right now at least you have some hook to the argument that you had presented yourself and they didn't have a job for you. I think you will be able to keep your green card safe eventually is my guess.

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Watch the Video on this FAQ: "Retroactive" effect of the new regulations; would H-4 EAD remain valid if I-140 is withdrawn

Video Transcript

I think if you have arrived at 180 days mark on or after January 17th, you should be covered by the regulations. More...

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Watch the Video on this FAQ: Compelling circumstances EAD

Video Transcript

If you use a compelling circumstance EAD you are in authorized period of stay. If you want to file I-485 or want to convert back to H-1B you got to go outside the USA and come back on a H-1B visa. There is no way around that. More...

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Watch the Video on this FAQ: AC21, changing jobs and when to file Supplement J

Video Transcript:

There is a graph on this about when you must file Supplement J on our web site and what happens after you file. 

As for your question, the answer is No. You will have to file Supplement J when the case is still pending, it's optional if you want to file you can but if you change employers next time and if there is an RFE you must file a Supplement J. More...

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Watch the Video on this FAQ: Impact of the new I-140 regulations

Video Transcript:

Your revocation of the I-140 is occurring from December 7 which is before January 17 where you would have been protected. I am worried that in your case if there was a revocation you will not be allowed for multiple H-1 extensions based upon an I-140 that has been revoked. If the revocation was from January 17 onwards you would be fine, but if it is before January 17 you will no longer have the right to keep getting H-1 extensions if the employer revokes your I-140. That was the old law. More...

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No. The only EAD possible is a compelling circumstances EAD. This would not be a routine EAD. See the graphic on my blog.

Watch the Video on this FAQ: Using for green card experience gained with end client

Video Transcript:

Normally you cannot use the experience gained by the end client if the end client applies for your GC. That is the normal rule. More...

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Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

Video Transcript:

1. I don't think it will be revoked.

2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

2b. Yes, you can change back to H-1B.

2c. I cannot predict this question as it is a question of logistics. 

2d. Most definitely.

3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

4. It does not.

More...

Watch Video on this view FAQ: The new regulations, withdrawal of I-140, H-1 extensions

Video Transcript:

The moment your I-140 is approved the date is yours, the moment it stays unrevoked for 180 days your right to extend your H-1 with any employer remains safe even if the 1-I40 is revoked. But the caution that I was pointing out to be is sometimes USCIS can go back and revoke an already approved I-140. But they have raised the bar on that too. They will not be able to take away your rights merely because they made an error. The error has to be something I call error plus, basically which means there were some certain facts that were not in evidence when they approved the case. More 

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You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:

1. Your I-140 is approved;

2. Your I-485 has been pending for 180 days or more;

3. You will take an employment same as or similar to your green card job; and

4. You file Supplement J.

Watch Video on this FAQ: How do we keep up with the rumors and changes in the laws

Video Transcript:

I can speak only for myself and you can follow my twitter account and all our social media accounts on immigration.com.  If there is a rumor going on and you are not sure, you can send me a Twitter message or a message through LinkedIn. 

Don't wait for any bills to pass because there is no guarantee that any bill would be passed. Bills take a long time and I personally feel that under the current rules if you change before I-485 filing you have to start the green card all over again. But if your I-140 was approved for 180 days you keep your priority date as well as your right to extend your H-1 through any employer even past six years. More...

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Watch Video on this FAQ: Extension of H-1 beyond six years, gap, in H-1, late in filing PERM, etc.

Video Transcript:

Under the current rules, there are two ways you can get H-1 extension beyond six years: one is based upon the time you're green card has been going on and the other one is based upon the stage you are at and we don't care what time the green card was started. Time-based and stage based. Time-based works like this. The day of the first anniversary of your perm filing is reached you are entitled to a one-year extension of your H-1 on a year to year basis. Stage-based green card, the day your I-140 is approved, you are entitled to three-year extensions. So those are the only two ways.  

What if you are late? What if you have only eight months left on your H-1 when your PERM is filed? 

Well, if there is a four-month gap or a two or three-month gap you would either have to convert to another status or leave the USA and then you come when you're one year time is matured or stage based green card is activated because you're I-140 is approved.

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You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

Watch Video: Changing back to F-1 student status after filing for green card

Video Transcript: If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

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Yes, as long as the I-140 is not revoked.

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

https://youtu.be/H_VV9kV_lOg?t=688

FAQ Transcript:

This is a very tricky issue that has come up time and time again and one month we have one answer and after six months we have another answer. There are two sets of questions here, one is priority date, if the employer revokes I-140 does it get lost and the other one is some issues about Green Card through a future employer.

So let's discuss two sets of issues, as of November 12th, 2015 the answer is, USCIS will not take away your priority date if the old employer revokes the I-140. However, you will not have any right to extend your H-1 based upon I-140 that is already gone. In addition, if the I-140 is revoked for fraud, misrepresentation or mistakenly having been approved by USCIS, you will not have the priority date then.

USCIS has reversed itself like three or four times. They started of a few years ago saying you will lose your priority date, if the employer revokes the I-140, then the sudden No, you will not. Few months ago they said Yes you will lose the priority date and couple of weeks ago again they said No you will not. So they have gone up and down on this issue all the time.

Another question often asked by a community member who says there are cases were very accurately people reported that their priority date was lost between May 2015 and September 2015 and the answer is yes. I know that because I did lot of consultations in between and there were lot of cases that were denied. Now these cases should try to file a motion to reopen or reconsider and try to get their priority dates.

The other question he put forth was, can we get to see a copy of this teleconference document?

Unfortunately, there is no copy. It is comments from one of the committee members, we have all the volunteer committees as American Immigration Lawyers Association (AILA), where members go on behalf of AILA and meet the USCIS, in one of those there is a comment from American Immigration Lawyers Association committee member that says; the government has categorically stated in that meeting that they will not take away priority date.

The other question is:  Does withdrawal of I-140 by an employer same as revocation by employer or withdrawal and revocation are two different things?

Withdrawal implies of something little different. Withdrawal implies that I-140 was not approved at least to my mind, even when it was pending it was withdrawn. Because once it is approved only can be revoked, I don't think it can be withdrawn.  Something is not approved and its withdrawn then we are out of luck there is no priority date. Priority date only can be conferred by approved petition. Once it is approved then it is revoked by employer under the current thinking of the government that we all know, they will not revoke or take away your priority date.

I am little hesitant to say that you can depend upon the word of the government, because I have looked at the regulations and I have looked at the way these folks have been flip flopping on the situation makes me very nervous to be in the situation, prepare for the worst, hope for the best that's all I can tell you.

Question: Has USCIS listed their final official position on this issue as like a document anywhere on their website?

Not yet, I have not seen anything in writing from the government.  So I won't be able to give you much there but as soon as I get something official from the government, I would be certain to post it. 

Question: Now Green card through future employer, what if another employer starts my Green card processing, can I continue working for Employer A , while Employer B initiates new GC process for me?

And the answer is yes. You can have 20 new employers to start Green card process. As long as you have good faith, intention to join whichever comes first or whichever is more suitable for you. I don't see any reason that you cannot have multiple Green cards filed.

Question:  Is it possible for me to clear the PERM and I-140 Stage of GC process of Employer B while still working for EMPLOYER A?

It is actually possible to process entire Green card with employer B, even though I-485 gets approved while you still working for employer A.

Question: I may or may not join EMPLOYER B. As I am in the process of looking for FTE (full time) position ) Say I moved to EMPLOYER C (FTE) and I have never worked with Employer B and have I-140 approved with EMPLOYER B .

There is actually Yates memorandum of May 2005 that talks about this. As long as you had good faith intention all the way to join, let’s say your I-140 was approved, PERM of course approved, I-140 was approved through employer B. You are working for employer A, I-140 approved through employer B, priority dates become current you still working for employer A, priority date becomes current after 180 days actually you do not ever have to join the sponsoring employer. You can join any employer who gives you same or similar job whether it is employer A, C, D or E.

There are some issues about coming back to employers after leaving them during the Green card process. I would want you to have one on one consultation with your lawyers, not an easy issue to discuss in a few minutes but it can be a problem if you leave an employer in the middle of the process and come back. Lot of people did not have any problems, one or two cases occasionally do get the problems. The government asks questions like why did you leave if this was the permanent job, if you left who was doing that permanent job, things like that could come up and there are whole set of issues that need to be discussed with your lawyers basically.

Question: I also heard about rejections in PERM. Can EMPLOYER B start two different GC process for me and file two PERMS at the same time?

No. Technically they can file two Green card process against two jobs, I would highly recommend against it. It can be for two different positions only, you can't file a PERM for the same employer, same employee, same job twice No.

Question: Does it cost anything for the Employer to hold an approved I-140? 

It does not, except sometimes the government can question their ability to pay wages and they look at all outstanding Green cards and indirectly it can become an issue for the employers. It does not cost them anything out of ordinary. Let me rephrase it, nothing out of pocket but if the RFE comes and if any of the cases about ability to pay wages I guess at that point they can revoke the I-140 if they want.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/F0YZD8zWm88?t=333

FAQ Transcript:

Writ is simply order of the court or a formal order.

Mandamus is to ask the government to do something, which it is legally obliged to do. It is important to understand what the court can and cannot do. First of all the court has to decide whether your case has taken too long unreasonably long to the extent where the delay itself becomes unreasonable. So very difficult thing to prove, depends upon the court. There is a ruling I remember litigating this issue very vigorously in Washington D.C. and one of the cases that was against us was a case from  Board of Indian Appeal that's what they called BIA not to be confused with Board of Immigration Appeal but Board of Indian Appeal . 

Usually if a group of people want to be declared Indian Tribe because if you are an Indian Tribe one of the things you can do is have unique rights within your own area such as opening a Casino. They had a determination pending for over ten years and court said that is not unreasonable.

So first hurdle is to actually be able to prove, of course before that there is hurdle of legal fees, it can be quite expensive to litigate an issue. Second hurdle is proving that delays are unreasonable, unreasonable according to what. The government processing times are merely guesses; they don't give us a right. The third thing which is also important, court cannot ask the government to decide  I-485 in your favor, they can only make government  act, whether the action is Yes, No or RFE. 

And my final point is something I find very odd, I never  believed to be possible until I saw it happened to  myself. The government behaves like a spoilt child because they have lost the case they can send you 30 page RFE requesting information that you would not believe could even be asked.

So because the court cannot tell the government to decide the case in your favor, they can only order the case to be decided Yes or No. You could end up creating more issues. The Freedom of Information Act usually does not help in these cases much. 

So keeping in view all these things personally my approach is very simple I tell people, are you at the point where you are so sick and tired that you either want a yes so you can get your Green card and stay in this country or get Naturalization whatever the benefit is or get a No and just leave, one way or the other. Once you come to that point that's when I want to litigate. Again it also depends upon the circuit, you know that in USA there are different Judicial circuits on the Federal level. So some circuits are more open to certain issues, some circuits are not open. We have to look at the law of the circuit also.              

As far as we know, USCIS has once again revered its position and has stated that priority dates will be retained if the revocation is based upon an employer's request.  See: the blog entry here

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/ZvUVIGTM-Kk?t=602

FAQ Transcipt:

That is not required. If you can get the school to give you a letter that says  you have finished all your degree requirements and you are waiting for  formal  confirmation of diploma or degree, that's good enough. But you can't be in a situation where you have taken the examination but results has not come yet, who knows you may not be able to pass.

So, if you have completed all requirements that is research or credits, whatever it is. If you have done those and you are nearly waiting for formal certificate, that is no problem. You can go ahead as you have got your degree already.

Regarding Question 2 the answer largely depends upon the lawyers. Have them review it. There could be potential legal issue. But if your degree requirements are completed and they induct you , employer inducts you or a job requires the masters degree or equivalent, you should be able to use that degree certificate when it comes or even started now. This is an issue which needs to be discussed with your lawyers in detail.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=1937

FAQ Transcript:

I think it is always a smart idea to have a complete copy of your file so that you know what has been filed on your behalf. If you can’t do that at the very least have copies of all your approval notices and at least a copy of your labor certification if you have filed the PERM. Copy of H-1 approval, copy of I-140 approval and copy of your PERM. That is what I would recommend.

USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/OMuYdzLJ2qQ?t=1436

FAQ Transcript:

Current thinking of USCIS is if the old employer revokes I-140 or USCIS revokes I-140 it will take away your Priority Date.  Second thing is in a situation when one files the second I-140, USCIS has already given the date from the old I-140 and now if the old I-140 is already revoked why keep the date and the answer is not necessarily. Just because the date has been put on your I-140 does not mean you get to keep it at least that’s the way I see it.

Let’s say husband and wife both have their  I- 485 going. Because she had her I-140, you had your Priority Date and might be a few months ahead of the other one should we be filing I-485s? One Primary and the other one Derivative and the answer is ...USCIS does not like it. On the other hand Is it legal to have multiple I- 485s the answer is "yes"... can it cause confusion and delays..."yes" but it also protects a bunch of very important rights.

The interesting this is ...let’s say husband and wife both filed I-485 one each but wife’s case got approved first what USCIS  does these days is they take husbands case and convert it to derivative  and approve him also. So they automatically convert pending I-485s from derivative to primary...from primary to derivative which is very good. So bottom line  - can you file multiple I-485's? " yes"...should you do it ?..get your lawyers check with the USCIS. I probably would where there is an advantage and where there is no advantage ...both jobs are secured nothing to worry about let’s say I would probably file one each and then wait. Chances are USCIS will convert when the approved primary and they will  convert  the derivatives case also . The second primary case also as a derivative and approved.

Form G-884 is used to request return of documents YOU had sent to USCIS (e.g., your college degrees and diplomas). Use FOIA for the purpose you are considering.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/8N82R3qAiJo?t=569

FAQ Transcript:

Did he get his H-1 approval for one year or three years? If he got it for one year then you might be still able to get H-4 EAD filed. But if he got a three year approval or more than one year approval based upon the I-140 rather than the perm application you may not qualify and in fact the government has said if you are basing your H-4 EAD filing upon the I-140 then the I-140 is withdrawn you are no longer eligible to file the application and somebody asked a question what if my EAD is approved then the I-140 is withdrawn the government has said even then we reserve the right to revoke your H-4. So you cannot file unless you qualify under one of the two grounds. I-140 or one year extension based upon labor certification.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

 https://youtu.be/3Heaadpk1Ik?t=273

FAQ Transcript:

There are only two ways to extend your H-1B beyond six years. One is that you have I-140 approved. So PERM is approved, your  I-140 is approved   and if you are an EB-1 person then your I-140 is approved (NIW EB-1). So if your I-140 is approved, we don't care when your Green Card started, whether its PERM based or direct filing of EB-1, you are entitled to your H-1 extension.

The other method is your PERM was filed a year ago or your I-140 and NIW.  In the case of first anniversary you will be entitled to 1 year H-1 extension, in case of I-140 approval you will be entitled to 3 year H-1 extension. 

When:
1. I-140 is approved; and
2. The I-485 has been pending 180 days; and
3. The job described in green card is the same or is similar to the job you are going to;
you no longer have to refile the green card.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=baprYGs8IzQ&t=1376 

FAQ Transcript

First of all you really don’t need a copy of the I-140 approval. We have been able to get H-1 extensions as well as priority date transfers based upon just your name, social security number, date of birth , name of the old employer, but you should file a Freedom of Information Act request. If you go to the USCIS list of forms you will be able to see FOIA Freedom of Information Act. Strictly speaking it is a Privacy Act Request but they are the same form. The form is G-639. That will give you a copy of your documentation. Often time’s government gives you a copy of all your paperwork including your I-140 approvals. So doesn’t hurt to try that way. So we don’t really need it. You should be ok. But it is a good idea to have copies of everything that the government has and can share with you. So when you file the FOIA/Privacy Act Request form it’s free to file and there is no charge on it. In a few months (4-5 months) you will get copies of the documents and it could very well include I-140 approval as well.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=baprYGs8IzQ&t=893 

FAQ Transcript

Answer to Q1. In other words you have the intention to join both of them but you haven’t chosen yet and I think that’s quite OK as long as that intention remains and the employer’s intention remains to hire you at the present date or future date you can file a green card or even an I- 485 that’s perfectly permissible. Actually you don’t have to join them on EAD you can join them after the green card is approved as long as you have the intention to join them the green card can go forward. 

Answer to Q2. No you do not. 

Answer to Q 3. The answer is yes 

Answer to Q 4. The problem is USCIS can always question this arrangement from a common sense perspective. This type of situation has not been questioned very frequently. In my entire twenty plus years of practice of immigration law I have had only one instance out of Chicago where this issue was raised and questioned. We get a kick back from USCIS saying well you know if he wants to work permanently for this employer why is he working for the other one why did he leave and we had a very good answer. In fact being paranoid we had prepared for that and made sure we knew what the reason was and it was genuine. This company was specialized in JD Edwards ERP and JD Edwards had lost a lot of market share so the individual in question the green card employee was a senior technical person and he went to get experience in other types of ERP. He looked at SAP and he was doing work in oracle finances and applications. He was learning all these technologies and the idea was he would be able to bring it back to the employer and they would be able to expand their ERP offerings and we were able to get that green card approved without any problem. So even though he was working for another employer the prior employer got his green card approved and once the green card was approved he joined. By the way under AC21 once the I-485 has been pending 180 days you can file an AC21 without joining the prior employer. The intent to join has to remain active in your own mind till 180 days or I-485 pendency has passed.

Answer to Q 5. I think that’s OK. 

Answer to Q 6. No because the government has made it clear we just want one active I-140 we don’t care which employer it has been approved with.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=110

FAQ Transcript

As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

FAQ Transcript 

The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719

FAQ Transcript

In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

ANSWER TRANSCRIPT

First of all a company does not file labor or I-140. They are not going to do green cards.  

Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

What can you do?

In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.

I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

FAQ: Discrepancies In Date Of Birth Information

FAQ Transcript

First of all you don't need to leave USA and go away and the question regarding should I forget about Green Card?

No, not at all. What you do is when you file I-140/I-485 make sure you mention your correct date of birth. Try to get your documents corrected, if you cannot get corrected have your lawyers file affidavit explaining what happened. But always go with correct date of birth.

Have we done this in the past? Yes we have. Have we had the problems? Little bit. 

We have to make sure that government understands it what the reason is and that we are just not being cute and trying to take advantage in some ways by creating the false identification. As long as government is convinced about that I usually see no further problems. So just don't give up, there should be detailed explanation, we should make attempt to make sure that you have corrected all the information about your date of birth on your passport, your school certificate. Whatever you can correct it, whatever you cannot correct document it. 

So, yes you do need your correct date of birth and because the documents for immigration in the United States are all filed under the Penalty of Perjury, your information must be correct.

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.

As long as your I-140 is not revoked BEFORE approval of H-1 extension/transfer, the receipt should be enough to get an extension with another employer. The priority date transfer is "automatic" and done at the USCIS level; that should not even need a receipt.

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers.

Unfortunately, there is nothing in the current law that will help you get your green card on your own. While an I-140 can be approved pursuant to employ-based green card process, ultimately, you will not be eligible for a green card because it looks like you have accrued unlawful presence of over one year after the age of 18. That requires either that you stay outside the USA for 10 years OR get a waiver through an eligible immediate family member (tough to get). Our best hope is for a change in the laws. Good luck!  

The priority date is yours the moment the I-140 is approved. There is no "cooling off" period. 

Employees retain PD even if the old employer withdraws the approved I-140. PD is lost only if USCIS revokes I-140 for fraud/misrepresentation. Do remember, however, there is no right to H-1 extensions based upon a withdrawn I-140. 

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

You can just make sure the employer vigorously responds to an NOIR, if needed.

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

In June 2007, the USCIS clarified what is considered to be equivalent to a U.S. Master’s Degree for Employment-Based Category 2. Each petition and its supporting documentation are examined on a case-by-case basis and degree equivalencies are based on the evidence presented with the individual case. However, the below is provided as a general outline:

1. U.S. Master’s Degree – As long as it is in the field required, no additional document is required.

2. Four-year Bachelor’s Degree + two-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be considered the equivalent to a U.S. Master’s Degree and no additional document is required.

3. Three-year Bachelor’s Degree + three-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be equivalent to a U.S. Master’s Degree and no additional document is required.

4. Three-year Bachelor’s Degree + one-year postgraduate diploma + two-year Master’s Degree (India) with degrees in the same or similar field - This would generally be considered the equivalent of a Bachelor’s Degree plus one additional year of education. Therefore, the beneficiary would also need to have five years' progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree and there would be no need to establish five years' progressive experience.

5. Three-year Bachelor’s Degree + two-year Master’s Degree (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference (EB-2) category. 

6. Three-year Bachelor’s Degree + two-year Master’s Degree (India) + five years' progressive, post-Master’s Degree experience – Generally, the educational degrees would be determined to be the equivalent of a U.S. Bachelor’s + one year and the beneficiary would meet the statutory requirement.

7. Three-year Bachelor’s Degree + two-year Master’s Degree + one-year postgraduate diploma (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference category (EB-2). If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree or the two-year Master’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree, and there would be no need to establish five years' progressive experience.

The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty. The post-baccalaureate experience should reflect increasing or advancing levels of responsibility and knowledge in the specialty. The profession should be an occupation for which a baccalaureate degree or its foreign equivalent is the minimum requirement for the entry in the field.

If the I-140 petition is still pending, then USCIS needs to be notified in writing of the change. If the I-140 is already approved, then an amendment needs to be filed by the successor-in-interest petitioner. Note that the successor-in-interest petitioner must take over the rights and liabilities of the earlier petitioner, including the immigration matters. Successor-in-interest cases can be tricky and generally need to be addressed by an attorney. For additional details, please see the attached USCIS memo from August 2009.

If an I-485 is already pending, a newly approved I-140 can be linked to it by sending a written request to the USCIS. Include all information and relevant copies to clearly explain the transfer of the I- 485 petition to a different I-140 approval.

Expedite requests are received through the USCIS NCSC customer service number. In cases of emergency where an AP is required, an INFOPASS appointment will be made possible at the local office. Usually, for expedite issues on I-485 applications for religious workers, the biometrics takes about 14 to 30 days. The lockbox, on the other hand, takes seven to ten days to issue a receipt. There is a sweep to bring up possible cases every two weeks.

According to USCIS, a letter is acceptable from a financial officer validating 100 employees and ability to pay. However, further information can be requested in case there are other reasons that show an inability to pay. Please keep in mind the employer in the RFE should be given the reason for the request. It is also important to know that USCIS might take the letter from the financial officer due to discretion.

USCIS has not yet finalized the system and has not announced when it will begin.

The regulations state that for ability to pay wages, USCIS will accept copies of annual reports, federal tax returns, or audited financial statements. If the employer has more than 100 workers, a statement from a financial officer of the organization can be submitted to establish the ability to pay the proffered wage. Additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted and will be considered at the adjudicator’s discretion. Additionally, USCIS has verified that consolidated financial reports of a parent company in which the sponsoring employer is a subsidiary can be considered by adjudicators to evaluate petitioner's ability to pay wages. As these reports tend to be lengthy, employers should tab the relevant pages for adjudicator’s reference.

Answer 1. As long as the job offer exists and the employer is capable of paying the wages, the green card process can go on, even though you are not in USA. You should discuss this matter in detail with your lawyers to better understand the implications. Also, I-140's do not expire.

Answer 2. PD can be ported even if the 140 is revoked by employer. I have a video on this issue 

http://www.immigration.com/media/form-i-140/priority-dates-can-be-carri…-140-revoked

Currently USCIS is accepting premium processing for certain I-140 categories. In addition to the regular filing fee, there is an additional $1,225.00 filing fee to upgrade to premium processing. If an I-140 is filed with premium processing, USCIS will issue a determination or an RFE within 15 calendar days.

Typically, these are some of the reasons when an I-140 should be filed through premium processing:
1) When an I-140 approval is needed to extend H-1 beyond the 6 years. Please see Rajiv’s blog entry for more information:
http://forums.immigration.com/entry.php?214-Obtaining-H-1-Extension-bey…

2) If you would like to know the outcome of the I-140 as soon as possible.

3) When the priority date is current and the I-485 could be approved quickly.

4) When requesting priority date carry-over from a previously approved case and would have a current priority date when the new I-140 is approved. This would allow the I-485 to be filed faster.

Typically, these are some of the reasons when an I-140 can be filed through regular processing. To find out the current USCIS processing times, please visit:
http://www.immigration.com/processing-times-and-status-checks

1) If the priority date is not current, and therefore I-140 approval doesn’t benefit the applicant in any way.

2) If any evidence is not available at the time the I-140 is filed, and would be available in the next few months. Examples include:
a. Financial information from the employer – if the latest tax returns are required to show ability to pay and the company has not yet filed. By the time the I-140 is reviewed and an RFE issued, the company would have had time to prepare and file the tax returns.
b. Experience letters – if there is a delay in getting the letters from previous employers. The employee would have several more months to acquire the letters by the time the USCIS issues an RFE.

Additional points to keep in mind when deciding to file regular processing or premium processing:
1) It is commonly believed that an I-140 filed under premium processing will receive additional scrutiny by USCIS. In our experience, this is not true - all I-140’s are reviewed the same way and issued an RFE if USCIS requires additional information or evidence.
2) An I-140 filed under regular processing can be upgraded to premium processing even after regular filing. The 15-day processing time starts when the request for upgrade is received.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

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.

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Both things are possible as long as the I-140 is filed in good faith. I have doubts about the I-140 approval if the job ceases to exist even temporarily.

CHANGING EMPLOYER WITHOUT I-140 APPLICATION
If a person changes employers without ever applying for I-140, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer.

WHAT IF I-140 IS DENIED
The PD cannot be transferred

CHANGING EMPLOYER AFTER I-140 APPROVAL

If a person has received an I-140 approval through an employer, the priority date then belongs to him or her, unless the I-140 is revoked for reasons of fraud. The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

Your wife cannot transfer your priority date to her case.

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

In my view, these letters should be obtained BEFORE the PERM application is even started. It can be one of the required and key pieces of evidence in I-140. But the preparation to deal with this issue has to be made even before the PERM application is drafted.

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

Ans. No other way.
 

Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.
 

Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

 Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
3. You are not eligible to receive 1-year H-1 extensions because your labor certification was filed less than one year ago.

FAQ

Question 1
Can we file I-140 PP if:
A) The applicant is in 7th, 8th or 9th year extension? If yes, do we have to wait until 60 days before the current year expires or can we file at any time?
Answer No. Because you fail the 3rd condition. You ARE entitled to receive one-year extensions of H-1.

B) The 6th year has already expired because there was no way to extend H1 at that time and the I-140/I-485 are currently pending? Applicant is on I-485 Pending status.
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

C) If the 6th year already expired and the applicant transferred to another non-immigrant status (for example, F-1) because could not extend H1?
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

See attached copy of the letter sent to CIS.

Addendum 02/27/09
In February 2009, CIS expanded the premium processing to include those people who are not in H-1 status currently or are out of the US. Rest of the requirements are the same. Typical of their style, the public notice was confusing and singularly useless in providing accurate guidance. Note that we had pointed out this problem to USCIS back in June 2008. See attached letter. It took them only 8 months to (partly) fix it.
 

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

I really want to thank and appreciate the good work you and your team is doing.
I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
My question is if my present employer lays me off and terminates my H1,
1. Can apply for H1B transfer to other company?
2. Will I be consider out of Status under any condition?
3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

But here are some things to consider.

Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.