Form I-140 FAQs

Tuesday, December 10, 2024 - 05:23

Green card process for STEM OPT candidates: Timing for concurrent H-1B and GC filing, employer strategies, and impact of client/location changes

Question

I am in my first year of STEM OPT. My employer verbally committed to filing a cap-exempt H1B in 2026 so that I can get the H1B right about the time my STEM OPT expires.

Question

I need to relocate to India for family reasons in 2025. My I-140 has been approved for over 180 days, and my initial H1B visa is valid until August 2025. I want to keep my options open if I decide to return to the US in the future.

1. Is there any difference in moving to India before or after filing for my H1B extension if I plan to return to the US with the same or different employer?

2. Additionally, is there a time limit within which I must return to the U.S. with the same or a different employer with an approved I-140?

3. Do I need to go through the H1B lottery again anytime if I want to return in the future?

4. Does it matter if my PD is current when I return to the US?

Answer

Monday, May 27, 2024 - 05:29

B-2 visa dilemma: Extend or switch to CPT for PERM/I-140

Question

I am currently on a B2 status and waiting for PERM approval. I have extended my B2 once, and I still think I would need another six months until my perm and I140 get approved. I need your suggestion in making a decision:

Should I move to day 1 CPT OR extend my B2 for another six months?

Which one will be the best option so I don’t get any RFEs from USCIS in the future?

I have another question: My parents and brother have their B2 visa interview scheduled for May 31st. If they ask my parents about me, is it a good idea to mention my situation in the interview?

Answer

Wednesday, May 15, 2024 - 09:21

Benefits of National Interest Waiver

1. Is it legal for an employee to pay all the expenses of a green card (eb2 / eb3), such as cost of attorney, pwd, recruitment, perm, I140 premium, I485, etc.?

2. Is it legal for employee to pay the cost of h1b premium transfer?

Question 2

My question is related to H1B stamping.

I have a stamped visa till April 2024 from my previous company.

I have a new I-797 from my current company.

Do I still have to go for Visa Stamping if I visit India in December 2023.

Answer

Monday, October 23, 2023 - 05:56

EB-2 vs. EB-3 visa filing: Pros, cons, and priority date considerations

Question

My perm got approved on Oct 5, 2023. I am an Indian citizen with a priority date from my previous employer filing as March 28, 2012. As per the Oct 2023 visa bulletin, I am current under the “Dates for Filing” chart for EB2 and the “Final Action Date” chart for EB3. My employer's immigration firm insists on filing my I140, I485, I765, I131, and I693 under EB2 instead of EB3 for my case. So two questions:

Question

If your company files a new PERM for a different role within the same organization after your initial I-140 is approved, will the initial I-140 still be active?

If your employer revokes your initial I-140 more than 6 months after it is approved and you move to a new role within the same company, is there any risk involved?

Will every organization need to apply for a PERM again in the future if you switch employers? Can you work for an organization that is not ready to start your PERM process, and can you use your previous approved I-140 to extend your H1B for a new employer?

Thursday, December 22, 2022 - 22:31

Changing employers after I-140 approval; priority date transfer, I-140 revocation impact

Question

I have been on H1B for almost 5 years and I recently got my PERM approved. My employer will file for I-140 soon. My question is related to priority dates. I saw one of your videos where you explained that the priority date practically belongs to the employee. So does that mean when an employee gets I-140 approval then the employee can change employer at any time and keep the same priority date for the next filing with the new employer?

What happens if an employee leaves or gets laid off after a month of getting i140 approval and the old employer decides to withdraw/revoke the application? In this case, can the new employer use the same priority date or get the new one for the employee? If a new employer gets the new one then what happens when an employee's 6 yr H1B term has finished before new i140 approval comes, does he/she get extension on H1B based on new application?

Answer

Tuesday, December 13, 2022 - 00:22

Can a new employer file I-485 using an old employer's I-140?

Question

My priority date is April'14 in EB2. My current employer filed an AOS (I-485, I-765 & I-131) using a prior employer I-140 petition. My EAD (I-765)/AP (I-131) was approved a few weeks ago. My current employer didn't submit I-485J while submitting I-485 application. My current employer PERM was submitted a few months ago.

Questions:

1) Is it safe to use the EAD/AP (or) would you recommend staying in H1B until I-485 is approved?

2) Will this filing be considered to be fraud/misrepresentation (or) Would you recommend withdrawing my I-485 application?

Answer

Wednesday, November 30, 2022 - 06:54

How long does it take from PERM to Green Card, and difference between NIW and PERM Labor Certification?

Question

1) How long does one have to wait in total if the company applied for PERM (EB2 - MS CS degree), and THEN Concurrently applied for I-140 (premium) and I-485 and the country of birth is UAE?

2) Can the above be done on an F-1 (OPT + STEM OPT) Visa instead of an H-1B? And any potential issues for F-1 in this case?

3) In this scenario, how would it work if the person also submits NIW in parallel with PERM?

Answer

(c) Is the only way for me to extend my H-1B visa status in the US after mid-2025 is to file for PERM ETA 9089 (pending over a year) or have an approved I-140?

Answer

Tuesday, June 28, 2022 - 03:02

How can we keep the immigration benefits of an approved I-140 (priority date and the right to extend H-1B beyond six years through any employer)?

Question

Three months after the I-140 approval, I moved from the location of employment given in my PERM application. I will stay with the same company for 180 days after the I-140 approval. To keep all benefits of an approved I-140 after I change employers, what do I have to do? What is the impact of the change of location? Do I have to prove my intention to keep the job permanently? Will the USCIS revoke the I-140 because of the change of location or if I change employers?

Answer

Tuesday, June 28, 2022 - 02:57

Denial of downgrade I-140 on the basis of the employer's ability to pay; impact on approved EB-2 and pending I-485?

Question

My EB-2 I-140 was approved in 2014. Like many others, in 2020, I filed for a downgrade from EB-2 to EB-3 with the same employer. The EB-3 I-140 was denied on Ability to Pay grounds. Now, my EB-2 date is current and I have refiled an I-485. Will there be any impact of the denial on my approved EB-2 I-140 and I-485?

Answer

Sunday, June 19, 2022 - 11:10

Interfiling - The downgraded EB-3 I-140 amendment is still pending?

Question

Hello Rajivji, Following up on the above question: if the downgraded EB3 140 amendment petition is not yet approved, could we then interfile with the previously approved EB2 140? Since the EB3 140 filed as an amendment is not yet approved, is the previously approved EB2 140 still active and valid? If so, can we use it for interfiling? What is the right thing to do? Please advise. Appreciate your guidance!

Answer

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.

Sunday, June 19, 2022 - 10:29

Using old I-140/H-1B for new employer while relocated to India

Question

I have an H1-B/ I-140 question for you and your team. Please see below: I came to India in 2019 to get my H1 stamped along with my family and got stuck. I got a 221(g), and RFE during the process but my employer got things sorted out. Then my employer also amended my petition and I re-appeared for visa stamping interview and got stuck again due to an ‘end client’ issue. Then Covid made things worse in 2020. Questions for your team: I have an approved I-140 with my old firm (on Eb-2) with a priority date of Jan 29, 2014. I am not on a US payroll since I came to India (in 2019) & my last approved petition also expired in Jan 2022. If a new firm had to take over my H1-B case 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 ? If so, can I port my old I-140 (& old priority date) to the new H1 petitioner after coming to US? What is the porting time frame after coming to US? Is Premium processing available for porting old I-140 (& priority date) to the new employer? Since my priority date is current, I wanted to know if my new employer can file for AOS upon my arrival in the US. Your help and feedback on the above matter will be greatly appreciated. Thanks!

Answer

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.

Friday, June 17, 2022 - 02:23

I-485 interfiling to use EB-2 instead of EB-3 with a new employer

Question

I'm an Indian national living in the USA.

1) Employer A filed I-140 (EB2) which got approved with a PD: AUG-2014.
2) I switched jobs from A to Employer B.
2. a) Employer B concurrently filed I-140(EB3) and I-485/765/131. This wasn't a downgrade from EB2 to EB3. This I-140 also got approved and able to port PD: AUG-2014. Also I-765/131 got approved. But I never used them.
3)I switched jobs from B to Employer C.
3. a) Employer C only filed H1B and I-485J.

Currently, with Employer C and my EB2 final action date became current(As per the June visa bulletin). Now I technically have tw
o approved 140s(One in EB2 and the other in EB3)

Questions:
1) Can employer C do a I-485 interfiling to use I-140 (EB2) instead EB3?
2) Since my PD became current in EB2, What would be the best option for me so that I get my 485 adjudicated sooner and get the GC.

Answer

Friday, June 17, 2022 - 02:14

Employee is outside The US. How to continue a green card through consular processing?

Question

I have a valid I-140 from my old employer and have not ported it to my current employer. Currently, I am not staying in the US, and my dates have become current.
I have below clarifications:
Can we file for Consular processing GC from abroad through my previous employer if they are open to hiring me back. At the same time I don't want to impact my current job as the old employer does not have their presence outside the US. As per my knowledge, I cannot file GC through CP; however, if I move back to the US will I be able to file I-485 without joining my old employer?

Answer

Sunday, June 12, 2022 - 02:35

Green card application for parents during tourist visa

Question

As per I-94, parents are admitted until 8th August 2022 for their B2 visa. We just sent the I-130/I-485 documents to USCIS.

Q1. What happens if there is no receipt generated till 7th August? Do parents have to leave the country?

Question

My EB-2 was downgraded to EB-3 in Oct 2020 and the attorney marked the amended box ( "To amend a previously filed petition") as checked.

Timeline:

I received the EAD combo card in Dec 2021. Changed the Employer (though transferred H-1) using AC21 after way more than 180 days of pending 485

My PD is June 30, 2012 Now that EB3 is retrogressed and stuck in Jan 2012., I wanted to know

1. If I interfile EB2. Will it be rejected as the amended box was checked when downgraded?

2. If we interfile, will there be an impact on the EB-3, in case they reject it

3. What is the best way now to have both EB-2 and EB-3 run side by side. What is the fastest way to get to GC in my case?

Answer

Friday, February 25, 2022 - 02:00

Interfiling - Job change after I-140 approval with priority date current and issues with H-1B transfer and H-1B extensions

Question

I am on H-1B visa with employer A. Have approved I-140 with priority date as Oct 2015 under EB-2. Looks like EB-2 can hit 2015 by the end of this year. With that in mind, Below are my questions:

1) Suggestions on switching employers when PD is nearing anytime soon. If I switch to employer B, what if my PD becomes current before employer B I-140 is approved? How long can I wait after my priority date becomes current to file I-485 with employer B I-140?

2) Will there be any issues for H-1B transfer and further H-1B extensions with employer B when the new PERM/I-140 is still under process?

Answer

Tuesday, February 22, 2022 - 10:30

Approved I-140 in May 2009

Question

Hello Rajiv, My I-140 was approved in May 2009 and unfortunately I lost my job and left US in October 2009. I intend to return back to US once I find good job. If my employer or myself file another I-140 could my priority date be retained from my original approved I-140. I see that current priority date for India is 2012 but obviously my priority date originally was in 2009. In this case can my priority become current as soon as I file my I-140. I will really appreciate your insight in such case.

Answer

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.

Thursday, December 16, 2021 - 08:43

Changing jobs (shortly after a promotion) with I-140 approval, I-485 pending, and the 180-day AC-21 portability rule

Question

I currently have my I-140 approved from two employers for a Senior Software engineer position under EB3 quota. I have my green card EAD with priority date: Nov 2014. I-485 has been pending for more than 180 days. I expect to be promoted to be a manager in the same line of work in the next 6 months. Due to personal circumstances, I might have to move to a different employer right after. Could you please let me know if there are any concerns if I switch right after getting promoted? The job duties would change but the line of work will be the same.

Answer

Thursday, December 2, 2021 - 02:19

Leaving employer while an I-140 is pending

Question

I am in a situation where my current employer has filed PERM and as per the timelines there are high chances that it will be approved till January. And as per immigration team in the current company says it could take a week or two to file for I-140. I am going to pay for premium processing. But at the same time, I have accepted an offer from another company and the start date is 31st January. I am sure that I-140 would not get approved till then. Can I pay for premium processing, leave after they file the I-140 and before it gets approved? Will it go through?

PS: As per company's policies they don't revoke I-140 of the employees if they leave before 6 months.

Answer

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.

Wednesday, November 10, 2021 - 05:55

Change of jobs with an approved I-140 from employer A and Reapplying PERM through B

Question

I have an approved I-140 from my old employer 'A' with a priority date from 2017. Now I am working for employer 'B'. I have a couple of questions about this:

i) Is it worth doing my PERM here through employer 'B' again if I plan to change jobs soon (maybe in a year or so)?

ii) Are there any benefits of doing the PERM now through employer 'B'?

iii) Or would you suggest doing the PERM with my next employer and not bother with the PERM through employer 'B'?

Answer

Monday, October 25, 2021 - 05:43

EB-2/EB-3 Options in PERM Filing and EB-2 to EB-3 downgrade and upgrade

Question

Q: 1. If the Priority date is current in EB-3 then my I-140 and I-485 can be filed EB3 (Lower it) but you said that after EB-3 will come then I should file I-140 in EB-2. Not sure about the whole concept, if possible can you elaborate in more detail?

Question

I had applied for the compelling circumstances EAD as i140 beneficiary when I lost my H1 job past July from info. thru these calls and our discussion. I found a new H1 job eventually in the grace period that H1 got approved later in Dec 2020.

Now after long wait, USCIS sent me biometrics appt. letter to go to ASC for fingerprints for this EAD. My question-

Since it appears USCIS wants to proceed with this compelling EAD despite the fact they have approved H1 in Dec. itself, should I go for biometrics to get this EAD?
If yes, is it fine to work elsewhere using that EAD(may be part time) while maintaining my H1 status thru current H1 job, or I got to pick one of the two? leaving my current H1 job will make me ineligible for i485 filing (in case my priority date may become current in another year) as that EAD is no H1 status right?
Or should I not go for this EAD/biometrics at this point at all? do I need to inform USCIS anything?

Answer

Thursday, April 15, 2021 - 05:25

AC21 Job Portability

Question

Previously I was on H1B when my I-140 was approved. Currently I am on H4 status, not employed and my priority date became current.
Previous employer has provided Supplement J and I have filed I-485, I-765, I-131 concurrently. The Supplement J indicates (#9 in Part 6) I am not currently employed with the sponsoring employer.

Q1) Upon receiving AOS EAD, can I directly join a new employer after 180 days of pending I-485 if sponsoring employer doesn't have any open position?

Q2) Can I start searching for new job before 180 days of pending I-485, but join after 180 days? Or, I must have to start searching and interviewing for new job, only after 180 days?

Q3) At the time of filing AOS, my Supplement J indicated that I am not currently employed with the sponsoring employer. If I join the sponsoring employer upon receiving EAD, then do I have to send USCIS new Supplement J indicating that I am now employed with the sponsoring employer, knowing that it might take a decade for my Final Action Date to become current and I may not be employed with the sponsoring employer at the time of GC interview?

Q4) What if I need to change my employer after GC interview, but before receiving GC?

Q5) I heard, after 180 days of pending I-485, even if I change my job couple of times, I can take the Supplement J only from the employer with whom I will be working at the time of GC interview. But can I still send new Supplement J to USCIS from each employers everytime I change my job? Is that legally allowed? or, is there any concern? Because, it might take a decade for my Final Action Date to become current and within that timeframe I might have to change job 2-3 times.

Answer

Friday, March 26, 2021 - 10:20

Cap-exempt to cap-subject H-1

Question

Situation: I am on a cap exempt H1 with an approved I-140 more than 180 days and I found an employer who can file my cap subject H1 this April.

1. If the cap subject H1 is approved before oct 1st, will my new employment start date be earlier than October 1st?
2. Should I have to leave my current employer as soon as the other H1 is approved?
3. What if I don’t join the new employer until I find a project with them? Meaning, can I wait until after oct 1st until I find a project with them?
4. From your previous calls, I understood that if the new H1 is not revoked until oct 1st, I don’t have to go under cap anymore. Is that still accurate? Also, can you explain about getting a new I-94?
5. Should I have to go thru the GC filing all over again?
6. Can I start working with new employer while continuing my current employment?

Answer

Wednesday, February 10, 2021 - 08:08

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

Question

I am currently on H1-B visa (valid until Dec 2021) and my Priority date is May 15, 2010, in EB2. I am working for employer A and I have recently applied for I-485/AOS in Oct 2020. Both EAD/AP are not approved yet and haven't received biometrics notice yet from USCIS. Kindly see below questions and advise.

1) If I change to employer B after 180 days of filing I-485, how would USCIS know that I changed my employer if I do not file new I-485 J that's given by employer B?
 
2 After getting EAD, can I stay without working for a few months? Is there a regulation that says that employment based I-485 applicant needs to work continuously after obtaining EAD?
 
3) I am working for a consultancy company and recently changed my client who is not within 50-mile radius of the existing MSA. My current employer A is not planning to file H1-B amendment. In this case, if there is a site visit by USCIS officer and if they revoke H1-B, then am I still considered to be in legal status because I already applied for I-485 in Oct 2020? Am I safe to stay legally in USA in this scenario even though I did not receive EAD based on AOS?
 
4) If H1B amendment/extension of an employee gets denied after filing AOS/I-485, is the employee still considered as in-status because of pending I-485?

Answer

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...

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.

Friday, January 29, 2021 - 08:47

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)

Question

Thursday, October 1, 2020 - 07:29

Priority date and original I-140 approval notice

Question

I am currently on H1B visa(3rd year) and few days back I got my I-140 approved in EB-2 category. I want to know if I can change my employer and retain my priority date.

Answer

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...

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.

Wednesday, September 2, 2020 - 02:14

Issues in changing employers after I-140 approval

Question

I am planning to switch from Employer A to B. Can you please help clearing some confusion i have.
Moving from Employer A to Employer B with I-140 approved.

1: If Employer A revokes I-140 and Employer B files a new petition I can retain the priority date. Does Employer A have to revoke I-140 or if he can continue it even if I am not working there? 
2: If Employer A doesn’t revoke the I-140 and Employer B files a new Labor and I-140 petition and retains the PD of previous I-140, would the previous I-140 be valid anymore? 
3: If Employer B files a brand new PERM and I-140 with new PD (2020) and Employer A I-140 is valid with the old PD. What happens if the old PD becomes current. Do I need to go back to old employer A or Employer B can file I-485 with the old I-140 PD. 
4: Is there a one year max limit rule on filing the I-485 once the date becomes current? What if it cannot be filed, does that void approved I-140?

Answer

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...

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.

Wednesday, August 26, 2020 - 07:14

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

Question

I have my PERM approved from my current employer A recently this month, can I still use my PD when I transfer my H1B to a new employer B, before I-140 approval or when I-140 is in progress with the old employer A?. If my job title is changed (from 'Software Engineer' to 'Business systems analyst')with changing job to the new employer B, can I still use the approved perm from employer A for the PD or to extend my H1B max stay beyond 6 years?

Answer

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...

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.

Tuesday, July 28, 2020 - 03:38

Working from Canada on or off H-1B

Question

Questions,
1. Can I stay in Vancouver while I commute to Seattle for work once a month for a day?
Is there any restriction on the amount of time I need to spend inside the US on H1B?
Is there any restriction to how frequently I can go in/out of the US on H1B?
 
2. Since my work location would be changing to Seattle from California for me to be able to do this. I am suspecting my PERM will need to be refiled. But given that my H1B is expiring next year and the PERM, I140 process takes almost 1-1.5 years. Can my current company use an older existing approved I-140 petition to help me get my H1B Visa extended? My older I-140 had been approved for more than an year before I left the employer.
 
3. Will doing this have any impact on my H1B Renewal? I would need to go for re-stamping next year in September.

Answer

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...

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.

Monday, July 13, 2020 - 11:25

Birth certificate problems for parents

Question

I applied I-130 for my father to get his GC through Consular processing. I'm a US citizen myself. However I got RFE asking for his birth certificate. I have these queries: The supplemental documents for I-130 for parents as per USCIS application only need US citizen's birth certificate and not the parent's birth certificate. So I don't understand why RFE was issued at this stage? My father was born in the time when the birth certificates were not available. As per the dept of state reciprocity website, it clearly states: "Exceptions: Birth certificates are not available to persons born prior to 1968. " Since it is acknowledged by reciprocity that birth certificates are not available, do I still need to provide NABC (Non-Availability of Birth Certificate)?

Answer

Wednesday, May 6, 2020 - 11:34

Implications of the 240 days grace period

Question

I am on H1-B with approved I140. My I94 expired on 10th October and my H1 extension was filed in time. After 7 months of processing time I got RFE even though my employer has filed two service requests requesting to expedite the process. Regardless now that I have got the RFE there is a very high probability that I wont get a response before 240 days which is on 6th June. As far as my understanding goes I am allowed to stay even after 240 days of H1 extension waiting for the decision but not authorized to work. Is that understanding right?

Answer

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...

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.

Tuesday, April 28, 2020 - 01:39

Covid Coronavirus H-1B employee furlough's impact on green card and H-1B

Question

I currently have an approved I-140 with my former employer which is past 180 days. I'm on my H1b (exp May 2021) with my current employer, now my current employer has furloughed me for 90 days and asked to return to work after the furlough period. During this time I'll be paid 20% of my salary or could use my PTO (200 Hours). What options do I have to maintain my status during the furlough period? Can I take paid/unpaid leave and go back towork for the same employer or do I need to find a new job?

Answer

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...

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.

Sunday, April 26, 2020 - 01:39

EB-1C International Managers/Executive Green Card portability

Question

1. I work for an MNC, who filed my GC in EB1C, I-140 approved 2 years back, I-485 filed almost 2 years back, completed I-485 interview an year back, also holds a renewed EAD/AP card. My company laid off me recently, so my L1-A will soon get invalid. I got an offer from another company in similar role and responsibilities (SOC code: 113021), so planning to move using AC21 portability. However, my first employer was in e-commerce, whereas new employer in banking domain. So, my new job offer compensation will be 10% less than the salary mentioned in my I-140/I-485 by my current employer.

2. My case is genuine as my current employer is laying off and my role got impacted, with Coronavurus pandemic, it's difficult to find new jobs. Though the roles and responsibilities (role as people manager) will be same, but domain and industry are different and hence, salaries will be different in different industries.

3. Within how months should we file I-485J and what documents do I need to provide to my new employer when joining the company?

4. By the way, my current employer suggested to use AC21 portability to move to any new employer and confirmed that they wont cancel my I-140.

Answer

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...

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.

Monday, April 20, 2020 - 01:39

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.

Wednesday, July 31, 2019 - 02:53

Impact on Green Card of Job Promotions

Question

My Employer has filed my GC in 2014 and I got my I140 but if I want to change a different role within my organization (Changing Cost center), will that impact my current GC processing. Should they start the GC processing from the begining ?

Answer

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...

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.

Wednesday, July 31, 2019 - 02:43

Options for Career or School, While Employment-Based Green Card is Pending

Question

I have been working on H1B for a IT consulting company ( employer A), at a client location. My employer will file for I 485 in about 2 months. I am thinking of a few alternatives and wanted to understand the scenarios in which my GC petition might get cancelled or denied by the USCIS or considered abandoned by me. What precautions I need to take if I follow any of the below scenarios.

1.Take a job with a different employer ( may or may not be same/similar to the job with employer “A” ) 
2. Leave and join a graduate program full time ( may be after I get EAD, so that I do not have to change to F1 student visa) 
3. Leave the employer A and leave the USA, go to home country, India. I may or may not take a job in India which may or may not be same/similar to the job with employer “A”

Answer

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...

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.

Wednesday, May 15, 2019 - 06:31

Options to Stay in the USA After Expiration of H-1B

Question

1. I am currently in H1-B more than 10 years in the USA and I have approved I-140 priority date Mar 2011 - EB2. My current employment is getting over in 3 weeks. And my current H1-B and I-94 expires in mid-August 2019. My question is if I am not able to find another job within my H1-B and I-94 expires on Mid August 2019. What are the options available for me to legally stay in the USA after my H1-B and I-94 expires? I have own house. Is there an exceptional case we can file GC EAD?

2. Without a job how many days i can stay in USA before my I-94 expires using I-140?

Answer

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.

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.

Tuesday, March 26, 2019 - 05:11

Getting H-1B Extensions Based on of I-140 Approval of Spouse

Question

My wife's I-140 was approved and I was also on her I-140. My non-profit employer also filed my PERM and is pending with USICS. If I have to switch employers before my I-140 approval and pending 180 days, I am assuming that my new employer would have to file my GC all over again. Given that I was on my wife's I-140, will I be eligible for H1 extensions after my 6yr period if I don't have my own I-140?
Also, can I change employers and my job roles once I have my I-140 approved and pending for 180 days?

Answer

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...

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.

Monday, February 25, 2019 - 03:52

Is H-4 EAD Tied to an Employer of H-1 Holder or to an I-140?

Question

I had an approved i140 from employer A for over a year. And my wife has her H4 and EAD approved recently (employer A).
In between, I switched to a new employer B and they have filed her H4 and EAD together with my H1b application. Currently her H4 & EAD is pending from employer B, but my H1b from employer B is approved. my i140 with employer B is not started yet but previous employer i140 was approved for more than 180 days. In this scneario, can the H4EAD approved with my previous employer A's i140 can still be used/valid?

Answer

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...

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.

Wednesday, January 23, 2019 - 10:14

Downgrading a Case from EB-2 to EB-3 for Priority Date Advantage

Question

I am with my current Employer since 2008. My GC is filled in EB2 with Aug-2010 Priority Date. Only I-140 is approved so far. 
1) Can my employer file me under EB-3 concurrently without affecting my existing EB-2 filling? 
2) If yes then what is the procedure for that? Do I have to do my labor and I-140 once again?

Answer

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...

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.

Friday, January 18, 2019 - 08:18

What to do When the 240 Days H-1B Work Authorization is Expiring?

Question

My H1 Extension is in progress since Apr 2018. My 240 day work authorization period is expiring on Jan 15th. My employer will put me on Loss of Pay after that. My questions are :

1). If I plan to wait for a decision on H1 extension, will I go out of status after Jan 15th and be staying illegally ? 
2). I have approved I140. Can I go back to India and apply H1 extension from there (in case this extn gets rejected), will this be considered cap exempt ?

Question

1. I have approved I-140, on 7th yr of extension and my current H1B Visa and I-94 valid with emp A until dec 31,2018 based on my latest approval I received in Nov 1st week.
I have another 1 month to apply for an extension and I am requesting my employer to apply in premium processing.

1)If my extension is applied in Premium before I-94 expiration but pending beyond my expiration date 12/31/2018,
I will be 'out of status' even though 'authorized to stay' until decision is made. Is this correct that this may affect my future H1bs in case it is denied
and attract NTA(notice to appear) in future because of my 'out of status' from date of expiration to date of denial or while leaving the country upon denial. 
2. Is it better if I leave the country on the last day of my I-94 expiration(Dec 31, 2018) while my H1B extension is pending in order to avoid 'out of status' or 'unlawful presence' scenarios by staying here.
If I leave the country while extension is pending in above scenario, is it possible for me to go for consular processing, get VISA stamped after it is approved and enter the US legally?
or
is h1b extension is considered as abandoned?

Answer

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...

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.

Monday, January 7, 2019 - 03:58

Continuing Employment-Based Green Card While Moving Outside the USA

Question

I am exploring an option to move to Canada temporarily in order to save my Canadian PR. My PD date is March 2012 and have an approved I140. Currently my H1B extension based on approved I140 is in process and hopefully it shall come soon and will be good till Feb 2022. Plan is to move to Canada after H1B approval and H1B visa stamping from India. 
Questions 
1. If Priority date becomes current during my stay in Canada then what are my options. 
2. If Priority date does not become current and I tried to enter US after staying for more than year outside US. Two situation could occur H1B extension (I797) is still valid (before Feb 2022). Will I be challenged at port of entry whether i am going to perform the same duties as mentioned in I-129. 
3. To convince them on job responsibilities will the letter from employer be sufficient Or need something else? 
4. Recent pay stubs shall also be helpful to prove my continue employment with my same employer ?
5. H-1B extension (I-797) is expired (after Feb 2022) OR because of some reason I have to file new H-1B extension to enter Can i use my approved I-140 to file new H-1B extension(or claim the H-1B period) and that will be cap exempt ? OR I have to file new H-1B petition and re-enter the lottery.

Answer

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...

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.

Thursday, December 20, 2018 - 09:25

Transfer of Priority Date on an I-140 Process

Question

I had EB-2 I-140 with PD of March 2017 , My EB-1 I-140 is Aug 2018. My attorney has filed for amendment of priority date - How this works , will they open the case again ?
How long will it take to get the amended I-140 with old priority date.

Answer

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...

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.

Wednesday, December 12, 2018 - 05:05

Effect of L-1A Denial on Approved I-140 Green Card

Question

I am currently on H-1B , which expires on 20 Jan 2018 , Instead of filing H-1B extension my employer filed for my COS on L-1A , As i meet all the eligibility criteria. I also have my EB-1C I-140 approved , but we cannot file 485 as the dates are not current. My L-1A COS is rejected (Denied) . Will this impact my already approved I-140 ?

Answer

Tuesday, November 20, 2018 - 04:13

How Can I Downgrade from EB-2 to EB-3 and Consequences

Question

I have I-140 approved in EB2, priority date is 2010. When date become current for EB3, I want to downgrade from EB2 to EB3 (I know I have to only refile I-140 and I-485 concurrent). What will happen if USCIS denied newly filed I-140 (EB3)? can I-485 also denied? If newly filed I-140 (EB3) denied, can I used my previously approved I-140 (EB2)?

Answer

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...

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.

Wednesday, October 3, 2018 - 10:26

Porting Priority Date from EB-2 to EB-1

Question

My husband has an I-140 approved from Company A ( Priority Date April 2008 , EB2). He is now eligible for EB1 under Employer B ( He is currently on L1 A ). Can his priority date from EB2 be ported to EB1 ?

Answer

Tuesday, September 18, 2018 - 03:20

Can I Join My Old Employer If The H-1B Transfer Is Denied?

Question

I have an H-1B visa stamped from employer A and the employer B has filed my H-1B (Transfer visa) based on the H-1B petition visa from employer A. Now, my H-1B visa filed by employer B is on RFE and my employer A wants to file the GC based on my previously approved i-140 from employer C. Below are my questions:

1. Can I reject the offer from employer B and still continue to work with employer A on current Visa if my H-1B from employer B is approved? 
2. Can I reject the offer from employer B and still continue to work with employer A on current Visa if my H-1B from employer B is denied? 
3. In case my visa from employer B is rejected do I need to leave the country and come on the stamped visa which I have now? 
4. Can I ask employer A to file my Green Card even if my H-1B from employer B is rejected or approved without any issues or do I need to provide any visa documentation to employer A on my petition from employer B being approved or rejected?
Can I immediately file the Green Card with employer B (after joining the employer B office) if my visa from employer B is approved?

Answer

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...

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.

Monday, September 10, 2018 - 05:15

H-4 EAD Based Upon Prior Employers

Question

I am currently working with employer A on H-1B visa with I-140 approved for over 180 days. My wife is on F-1 EAD. I am planning to move her visa status from F-1 to H-4 EAD AFTER I join Employer B next month based on my approved I-140 from my employer A.

My questions are: 
1. Once I join employer B, will I be able to apply for my wife's H4 EAD based on approved I140 which I have from employer A? Can I apply both visa status change (F1 to H4) and application for H4 EAD concurrently? 
2. In other words, will changing my employer impact my wife's eligibility to get H-4 EAD based on my approved I-140 from previous employer? 
3. Can I change multiple employer based on I-140 approved from employer A? If yes, what if employer B has already started green card process (PERM)? 
4. If I get I-140 approved from employer B also then what will happen to I-140 approved with employer A?

Answer

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...

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.

Tuesday, July 31, 2018 - 06:40

Applying for H-4 Status While on Parole

Question

I have I-140 and I-485 pending. H-1B ended on May 2018 and applied for extension which is pending.
Spouse entered US under parole status and is valid till December 2018, H4 visa has expired in May 2018
Can spouse apply for H-4 extension after approval of H-1B extension? If so can it be done from USA or have to travel abroad for H-4 visa stamping?

Answer

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...

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.

Tuesday, July 24, 2018 - 12:55

Getting Promotions Or Changing Job Description While Green Card Is Pending

Question

Present Status: I-140 is approved and priority date Jan 2016. I completed my MS in USA. My company attorney/HR is telling me I can't get promotion till I get my green card approved. As per them this is Immigration law or this is part of green card process. Can you please confirm if there is immigration law which tells that if your green card is pending then Job title can't be changed and promotion can't be awarded?

Answer

Answer

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...

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.

Wednesday, May 9, 2018 - 08:43

At What Stage Should I Join My Future Green Card Employer?

Question

My future employer is planning to file my GC PERM in the month of May 2018. Also I have PERM in process from my current employer.
Is it advisable to join the future employer before filing the PERM or after the PERM is approved or after I-140 is approved.
Basically need to know at what stage of the GC process I can join the future employer.
Does my joining the future employer impact the GC approval process (getting PERM approval, I-140 approval).

Answer

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...

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.

Thursday, May 3, 2018 - 13:09

H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit

Question

I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions: 
1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit? 
2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org? 
3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs

a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?)

b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1

c.applying for concurrent H1b

d. Moving on to H4EAD and filing a H1b next April

e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

Answer

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....

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.

Thursday, March 29, 2018 - 05:21

180 Rule for Priority Dates/H-1B Extension

Question

I have quick question about the mystery behind 180 days staying with the Employer with whom my I-140 is approved. So my I-140 is been approved with priority date as Dec 2014 and the Notice date is Nov 2017. Do I have to wait for 180 days/ 6 Months from the Notice date of Nov 2017 so I will not loos the Priority date when I move with new employer?

Answer

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...

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.

Tuesday, March 20, 2018 - 03:26

H-1B Tranfer, AC21 and I-140 Process

Question

1. While I am moving my H-1 New Employer B, What if something goes wrong during H-1 transfer or after that in GC processing with new employer like RFEs etc comes up, can I move back to employer A if employer A is willing to take me back. Does AC 21 portability rule applied to my case also? Since I have not filed I-485 yet, as per my understanding this rule does not apply to me. While my GC is in process with new Employer B and I am in waiting mode for I-140 approval with new employer, What will happen if my time to extend H-1 petition comes up.
 
2. Can I still extend my H-1 with new Employer even if I-140 with new employer is in process and not yet approved. Can I use my old Employers approved I-140 to extend my H-1 in this situation.

Question

I came here on L1A. At the time of petition, my offer letter from my employer had a salary of $120K annually. This is $10,000 monthly. I want to know if running my payroll for less money will affect my GC process which I am planning to apply next year. Considering following situations, Will it affect my GC process which I am planning to apply after 1 year from my arrival date? 1) If my payroll is run for lesser salary e.g. in the range of $6000 to $8000? 2) If my payroll is run with (salary + bonus) to make it a total of $10,000/month (120K annually). For example salary = $6000/month and bonus = $4000/month

Answer

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...

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.

Friday, August 25, 2017 - 04:05

Transfer from H-1 (with I-140 approved) to H-4 EAD

Question

I have approved I-140 with company A and my wife has her I-140 approved or over 2 years. I'm planning to move to H4 EAD. Can I file for H4 and H4 EAD concurrently? What would happen to my earlier I-140 and also to the GC process if I am on H4?

Answer

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

Thursday, July 27, 2017 - 05:56

New Regulations, Effect on Layoff after I-140 Approval

Question

1. I have I-140 approved and its more than 6 months over. My priority date is March 2011 under EB2. At this situation, if my current employer lay me off from work, what immediate step I need to do, in order to legally stay in the USA. ( Do I need to contact my lawyer to change my H1B visa status and my family status to Tourist visa or Can I change my status online or what is the option?). 
2) With the new I-140 EAD regulations effective Jan 17th 2017 in place, am I eligible to apply for EAD using "Compelling circumstances EAD", if my company laid me off? As of July dates for filing for EB2 visa application is 01FEB09 , which is more than 2 years wait time for my dates to be current.

Question

I am on a H-1B Visa for past 9 years and have EB3 I-140 (2008 Priority Date) from Company A and EB3 I-140 from Company B (2014 Priority Date). I am now with Company C. I am Heart Patient and was operated for Heart By-Pass Surgery in 2013 and since then taking my regular Medicines (for my entire Life). I feel stressed on continually working for 40 hours a week and feel getting a EAD will be a god's gift and I can use this EAD to work at my convenience.

Answer

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

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.

Thursday, June 29, 2017 - 08:29

Changing Jobs and Supplement J

Question

How long does the supplement J form take for approval? What happens if supplement J is denied? Can I work with the new employer without filing supplement J?

Answer

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...

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.

Friday, June 9, 2017 - 02:51

Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Question

Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?

Answer

Sunday, May 21, 2017 - 23:00

Filing green card through multiple categories or employers and/or family simultaneously

Question

1. Can we file multiple green cards together? If yes what will be the side effect? 
2. My company filed my green card in EB-2 category and I-140 is approved with priority date 2013. I want to give a try with EB1 category personally if I will try in EB-1 and let’s say it is not approved, then will it affect my EB-2 green card? 
3. Should job description match in EB-1 and EB-2? 
4. What may all possible issues occur?

Answer

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...

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.

Monday, May 8, 2017 - 23:52

I-140 Revoked By Last Employer

Question

I stayed with my last employer more than 6 months after I-140 was approved. My employer revoked I-140 but I can retain my priority date.
Now, I am filing I-140 again with a new employer. Will I have stay with my current employer more than 6 months after I-140 is approved to retain my (old) priority date? If I change job after I-140 is approved, my employer can't revoke it. True? Is there any period I need to be employed with the current employer after I-140 is approved?

Answer

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.

Wednesday, April 19, 2017 - 04:04

Change of Job Description / Job Location on PERM and I-140

Question

1. Working with Employer A - but the place of employment is the end client B (on site work at Client B location). PERM and I-140 approved. At this point, If I have to move to a different client C (Same Employer A - on-site work at Client C Location) - in a different State - Same Job Title but different job duties/job description - Would that need to file PERM and I-140 one more time? 
2. Is there any language permitted in the LC for PERM - such as "relocation upon completion of the project" or "Job may require traveling/relocation across the USA" - so that the PERM and I-140 does not have to be filed again?

Answer

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...

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.

Friday, April 7, 2017 - 00:39

Consequences of I-140 revocation

Question

1. Consequences if revoked (I-140) within 180 days. Benefits, if unrevoked(I-140) for 180 days and end date at work still be May 15th (or, should I ask my employer to EXTEND my end date until end-of-June so I complete my 180 days of I-140). 
2. How question (1) above will impact H4-EAD which is under processing. if approved before May-15th H4-EAD is still valid and can be used ? 
3. Does it mean after May-15th (last day at work) I have 60 days grace period to look for a new employer who sponsors my H1-B?

Answer

Answer

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...

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.

Monday, March 27, 2017 - 23:59

What if I never joined the employer who sponsored me for green card?

Question

Working for the same company for 9+ years (7 yrs in the USA and since last 2 years in India Development Center for the same company). I received my GC in June 2016 and have got the physical cards delivered to me in India. Lost my father in Nov 2016. More than 9 months passed since GC - never traveled on GC so far or worked for the Sponsoring employer even for 1 day in the USA. I want to work and live in the US but for immediate time (next 1 to 2 years) I need to spend more time in India to console and support my grieving mother. My current company does not have any immediate work for me in the US. I am looking for options outside my company to come back to the USA. I am also considering an opportunity local in India.

Answer

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

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...

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.

Thursday, March 16, 2017 - 07:18

Impact of the new I-140 regulations

Question

My I-140 approved (India/EB2) from Employer A in June 2015, I joined Employer B in Oct 2016. Employer A sent revocation of my I-140, on USCIS website today is showing below status: "On December 7, 2016, we received your correspondence for Form I-140 ..." Will I still be eligible for 3 years of multiple H-1 extension with my approved I-140 from employer A without filing new I-140?

Answer

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...

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.

Tuesday, March 14, 2017 - 05:15

EAD on the Basis of Approved I-140

Question

I have an approved I-140. My priority date is April 2011. Can I file for EAD on the basis of approved I-140?

Answer

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

Thursday, March 9, 2017 - 07:34

Using Green Card Experience Gained with End Client

Question

Changing their employer from Company A (Current Primary Employer) to Company B (Direct Client of Company A - which will be the new primary employer going forward) - Can the experience earned by the person (skill set as well as number of years) earned with Company A be used for satisfying the job requirements of PERM / I-140 petition filed by Company B - if the person was actually working for the direct client i.e. Company B - all the time while employed by Company A (Current Petitioning Employer for approved I-140) ?

Answer

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...

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.

Thursday, March 2, 2017 - 00:34

Will H-4 EAD Rule be revoked?

Question

1) Is it true H-4 EAD rule will be revoked by the government? 
2) My H-1B visa is going to expire in 14-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration). 
a) If my PERM is not approved before my current H-1B visa expires. Can I change to H-4 EAD at that time? 
b) If my PERM approved after change to H-4 EAD, Can I change back to H-1B? 
c) Is it possible to convert from H-1 to H-4 EAD without taking a break in employment? 
d) If my PERM gets approved after my current H-1B expires can my employer file for H-1B extension? 
3) I would like to move to H-4 EAD but I would like to come back to H-1B anytime in future, in that situation what is the best status for H-1B? 
4) If I apply for new H-1B is it comes under H-1 quota (After 6 years completes.)?

Answer

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...

Tuesday, February 28, 2017 - 07:04

The new regulations, withdrawal of I-140, H-1 extensions

Question

I have an approved I-140 with priority date 2013 from employer A and my employer A is withdrawing it. I am going to apply I-140 with employer B now in regular processing and also porting the date. I will complete my 6 years of H-1 end of the year. Will I still be eligible for 3 years of H-1 extension with my approved I-140 from employer A?

Answer

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

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.

Tuesday, February 28, 2017 - 02:18

Changing Employers With An Approved I-140 After January 17 2017

Question

I have approved 140, Green card EAD/AP card in EB2 from company-A and passed more that 180 days. I have maintained H-1B status since last 9 years instead of using EAD/AP as the need to go India for marriage so my future wife gets H-4 easily. Just transferred my H-1B to company-B. Company-A will revoke my I-140 in March 2017 due to company policy. I have following questions to ask you. 
1. Shall I get H-1B extension (beyond 6 yr) in future with company-B after I-140 revoke from my previous employer? 
2. I have EAD/AP card from my previous employer. Is it required to start GC process like labor and I-140 application again with company-B if my previous employer revokes my I-140?

Answer

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.

Thursday, February 23, 2017 - 02:27

Extension of H-1 beyond six years, gap in H-1, late in filing PERM, etc.

Question

My H-1B visa is going to expire in 01-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).

1) If my PERM gets approved before my current H-1B visa expires (i.e. before 01-Jan-2018). 
Would I be eligible for a H1B extension for 1 year since my PERM was approved before the current H-1B expiration?

2) If my PERM gets approved after my current H-1B expires can my employer file for H1B extension of 1 year since my PERM is approved now.

3) If my PERM is not approved before my current H-1B visa expires. 
Would I need to go back to India?

4) I spent about 2 months (on vacation) in India. Can these 2 months be added back to my current H-1B visa? or this can only be added if my current employer files for my green card?

Answer

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.

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.

Thursday, February 23, 2017 - 02:27

How do we keep up with the rumors and changes in the laws

Question

How do we keep up with the rumors and changes in the laws? My I-140 is approved in 2013 and priority date is on 2013. Do you have any inside on country quota elimination bill?

Answer

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...

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.

Thursday, January 5, 2017 - 01:48

Regarding H-1B Extensions

Question

I heard your community conference call for 1st December, you mentioned that even though the approved I-140 is withdrawn by a previous employer after 180 days of approval we should still eligible for H1 extensions with a new employer.

I was a student on F-1 (MS), and I got my H-1B two years ago. My company has started GC process and already got my I-140 approved. But I want to go back to school this fall (law school), which means I'll have to change my status back to F-1 again.

Answer

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.

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.

Thursday, March 3, 2016 - 06:12

I-140 approved - H-1B renewal

Question

Using an existing approved I-140, can a H-1B be renewed any number of times, with new/multiple different employers, even without restarting any paperwork for GC with the new employer?

Answer

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

Monday, January 11, 2016 - 07:23

The Proposed I-140 EAD Rule - FAQ's

Question

Answer

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.

Tuesday, December 22, 2015 - 06:31

Difference between I-140 withdrawn and revoked

Question

I saw some online forums stating that if I-140 withdrawn you can retain your PD date. Is it true under current circumstances? What is difference between I-140 Withdraw vs I-140 Revoke? If both are not the same, in which cases employers to for withdraw.

Answer

Thursday, December 10, 2015 - 14:57

No loss of priority date if employer revokes I-140; Green card through future employer

Question

I have my perm labor and I-140 approved through EMPLOYER A (Consulting Firm). Priority Date June 2013. If I am going to change Employer, EMPLOYER A is going to REVOKE MY I-140. I heard from your last conference call that i will be loosing my priority if I-140 is revoked by employer.I am close to 5th year of H-1. so cant take chances. If I move to FT position in the next 6 months and say my current employer revokes I-140. I will not be able to get extension for H-1 beyond 6 years.

Answer

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.

Wednesday, December 9, 2015 - 06:12

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Question

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.

My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.

2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B.
 
What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer

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.

Tuesday, November 17, 2015 - 22:51

Obtaining copies of approval notice and other documents through FOIA

Question

1. My employer filed my I-140 and it was approved. They refused to provide me the approval notice but through InfoPass I was able to get my receipt number and Alien #. To port my priority date, I would like to request USCIS for the duplicate copy of I-140 approval notice.
2. Is it possible to request USCIS a duplicate copy of my I-140 approval notice using either G-639 (FOIA) or I-824 (Action on an approved application or petition) or any other method as I have my receipt#?

Answer

Monday, November 16, 2015 - 06:45

Writ of Mandamus against delay

Question

I am currently pending I-485 (EB3, skilled worker employment based, priority date Oct 2008) since April 2014. I submitted inquiries through congressman, they received a letter that my case is on hold indefinitely. Do you recommend filing Writ of Mandamus or would that cause a denial? What other actions can I take, I've submitted a case through the Ombudsman and met with a USCIS officer through Infopass appointment (who told me nothing). No RFEs have been issued for this case, I-140 was approved and fingerprinting done (twice, since first set expired).

Answer

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.

Wednesday, November 11, 2015 - 07:37

Priority date loss upon revocation of I-140

Question

1) Is there any difference between I-140 revoked by employer - vs - I-140 revoked by USCIS (say for fraud or misrepresentation) with respect to being able to retain the priority date with the new employer ? 
2) Changing from Employer A to Employer B - If Employer B files the PERM before I-140 by employer A is revoked by the employer A - would that help retain the PD corresponding I-140 to employer A ? In other words, are there any specific scenarios in this case - where the PD could be retained based on the first I-140 approval ?

Answer

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

Monday, October 26, 2015 - 04:48

For PERM is formal certificate required or completion of degree is enough

Question

1. I am on H-1B with my I-140 approved in EB-3 with priority date is Sep 2013. I have 12+ years experience in the field. I am getting an opportunity from a company. They are ready to start my green card process.
I have just completed my master degree(MCA) from India. Waiting for my degree certificate, which would take a month or two.
 2. Can my new employer do the H-1B transfer now based on my BSc degree (Computer Science) and once I get the master degree certificate, can they start the green card process in EB-2? Or do I need to wait for my master degree certificate before the H-1B transfer?

Answer

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.

Tuesday, October 20, 2015 - 09:05

Changing employers - what immigration documents should I keep

Question

Currently on my H-1B post 6-year based on approval of PERM and I 140 under EB - 2. Would be In the process of switching jobs for some personal / professional reasons very soon.

1) What documents would I need to have with myself - corresponding to PERM and I-140 - so that I can retain my priority date and start another green card process with a potential new employer ?
 
2) For the documents above - would I need to have the originals or the photocopies ?

Answer

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.

Thursday, October 15, 2015 - 03:51

H4 - EAD validation if H-1B holder moved to another company

Question

I have a question on EAD validity for the below scenario. 
H-1B holder got I140 with Employer A and applied EAD for H-4. H-4 is valid until MM-DD-YYYY 10-29-2018. Now H-1B holder moved to Another Employer B, then at this point he doesn't have Approved I-140. Will EAD which received using Employer A valid until MM-DD-YYYY 10-29-2018? I knew for renewal of current EAD after 10-29-2018, we need approved I-140, but not sure exiting EAD is valid until 10-29-2018 if H-1B holder moved to Employer B.

Answer

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.

Wednesday, September 23, 2015 - 07:33

Priority date port and multiple I-485/AOS petitions

Question

I have my old Priority date as Dec 2009 in EB-3 and when I changed the company they filed the Labor and I-140 in EB-2 and my old Priority date is not ported on my new I-140 and I see the new I-140 in EB-2 with the Priority Date as Jan 2013. Now with the revised USCIS VISA Bulletin can I apply my I-485 with old PD ( EB-3) and simultaneously to be safer side can I apply I-485 from my wife's side and her PD is July 2010.

Answer

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.

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.

Tuesday, May 26, 2015 - 20:59

Requirements for Extension of H-1 beyond 6 years

Question

I am looking for opportunities using the remainder option of my H-1B. I have a year and half remaining out of six years.

Now, most of the companies do not want to start the GC process immediately; they want to start after 6-12 months.
I have the following two questions:
1. What stage do I need to reach on my GC process when the remaining time on H-1B ends.
2. If my company doesn't want to start GC process immediately, can I begin this on my own using my personal fund?

Answer

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.

Tuesday, May 26, 2015 - 05:32

Change jobs without having to file for I-140 again

Question

Please let us know effective when we can change jobs without having to file for I-140 again?

Answer

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.

Thursday, March 19, 2015 - 08:33

How to get a copy of I-140 approval

Question

My I-140 was currently approved but the company is keeping the Original copy of I-140 approval with them, also they are not giving me the copy of original. The GC is filed in EB-3 and I have US masters degree and technically qualify for EB-2 category. I was waiting to get my I-140 approved and H-1 filed so I can start looking for change of job who can file in EB-2 with same PD. 
How important it will be for me to have the original copy of I-140 or how are the other ways which I can obtain this from the USCIS directly?

Answer

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.

Monday, March 16, 2015 - 11:32

Green card through two employers and future employer

Question

I am in a very difficult/complex situation, the situation is as below: 
Have been on H-1 for 3 + 3 + 3 + 1 years (last 4 years extended based on approved I140). Have approved I-140 with priority date of June 2010 in EB-2 category. H-1 extension was denied last year hence had to leave employer A, now I am on H-4 and will be soon filing H-1 with employer B. I have following questions on which I am requesting your opinion.

Q1. When my priority date becomes current and if I am still with employer B, can employer A still file my I-485 and that way I can then get the EAD and join him on EAD? : 
Q2. Further, do I have to be working with employer A on an active H-1 visa to be eligible to file EAD when my priority date becomes current? : 
Q3. If question 1 approach works, can I then continue to work with employer B and employer A can process my green card in parallel. : 
Q4. What are the risks in working for employer B when my I140 is with employer A. Note that employer A is willing to preserve my I-140 and process green card eventually without me working for him, because he is unable to find me any projects? : 
Q5. I do plan to file for a new GC with employer B but worry is the priority date is likely to become current before I complete GC process with B. : 
Q6. Do I need to be with employer A for my wife to apply H-4 EAD based on my I-140 with A (note that currently I am with employer B).

Answer

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.

Tuesday, February 17, 2015 - 01:23

H-4 EAD Rule

Question

My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions 
1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently? 
2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?

P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.

Answer

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.

Thursday, February 5, 2015 - 10:10

Procedure for Porting a Priority Date from One I-140 to Another

Question

I have two approved I-140`s in EB-2 from two different companies with same A# on them. One with 2009 PD and other with 2011 PD. I am working for the company with 2011 PD . 2009 case was approved after the 2011 case so we could not port the date at the time of filing for 2011 case I-140. Now my question is do I need to file for amendment to port the 2009 date? Or am I eligible for filing I-485 without the I-140 amendment? Both I-140's are alive and employer did not withdraw any of them.

Answer

Thursday, February 5, 2015 - 10:05

Changing from EB-3 to EB-2 Category

Question

I have my I-140 approved under EB-3 category, even though I have Masters Degree from accredited US University. Can I change it to EB-2 now?

Answer

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.

Thursday, January 15, 2015 - 15:59

Changing Jobs During Green Card

Question

I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?

Answer

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

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.

Friday, January 9, 2015 - 15:56

Using Obama's Immigration Action to Apply for AOS/EAD

Question

I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?

Answer

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.

Wednesday, January 7, 2015 - 21:06

I-140 Revoked after AC21 Portability

Question

From our community member 
Here is my Situation.

I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be
any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period.

In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country.

My Question : 
What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status.
Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this? You’re Suggestions/Comments please.

Answer

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

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

- See more at: http://www.immigration.com/faq#sthash.DTqPrkHp.dpuf

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?

Currently my I-140 is approved and now for the I-485 I need to present date of birth certificate. Problem is that DOB on certificate is correct and on all other documents including school, college, and passport and in all US records it is in correct. It started with wrong DOB in 10th certificate which was used in college, passport and finally all US documents. Now I went through all the channels and found the ways to change in passport and in all US documents. Question is what legal problems I should be prepared for and how it impacts my US records once it is changed. I am in US for last 7 years. I need to take decision on this as if it is worth doing it or just go back to India and may be forget about GC for this time. Really appreciate you taking out time for this kind of questions.
Really appreciate you taking out time for this kind of questions.

Answer

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.

Monday, September 29, 2014 - 07:35

Do Not Have Copy of I-140 Approval Notice But Have Receipt

Question

I have my I-140 approved(in my 6th year of H-1). But my employer is not handing the approval notice to me. I have both Receipt Number and my Labor number (starting with A.). I have filed FOIA to get copy of I-140 approval notice. I wanted to know
1) Can I transfer my H-1 to another employer by just giving I-140 receipt number to them?
2) Can my new employer use this number to file my GC and keeping the PD based on this number?

Answer

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.

Thursday, July 10, 2014 - 02:38

I-140 for H-1B Extension

Question

I have a approved I-140 with on H-1B for more than six years working for company A. If I change to company B I will get 3 years of extension for new employer B. If I leave employer B before my PERM or I-140 is approved with employer B and join employer C. How many years of H-1 extension I will get ? Can I get 3 years of H-1 extension using approved I-140 with employer A.

Answer

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.

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. - See more at: http://www.immigration.com/comment/13726#comment-13726

Wednesday, May 14, 2014 - 03:48

Eligibility for I-140, Undocumented Dreamer

Question

I am part of the (Deferred Action), I started going to school in the US since I was 8 years of age and now I am 22, so I have been in this country almost all my life.
I was working with Tax ID and of course my own name, I have built credit, invest, save, and spend wisely. I would always filed my taxes even though sometimes it would be a significant amount but I still wanted to keep my record as a good moral character who follows the law and keeps everything in order.

I felt very blessed and was very thankful to God because he made a miracle that would help me stay in the US and work legally. The miracle was the (Deferred Action), I would of loved that the (Dream Act) was passed because It would provide me with a green card and be eligible for more federal and state benefits.

I am currently enrolled in community college, Montgomery college pursuing my Associate's degree and then transferring to a 4 year university to obtain my Bachelor's degree and last but not least get my Master's degree. I am very goal oriented and I believed if you're a good person, good things will come to you. I apologize if initiated with my personal story rather than my question for eligibility for I-140.

Questions:

Question

A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my EAD/AC21:
a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140?
b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases?

What are the measures I need to take in either case?

Answer

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.

Thursday, September 5, 2013 - 01:05

Ability to Pay

Question

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence?

2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability?

3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status?

4. Why are prorated net assets not sufficient evidence to support ability to pay?

5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

Answer

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.

Wednesday, January 2, 2013 - 06:20

Qualifying Degrees for EB-2

Question

What degrees qualify for EB-2?

Answer

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.

Question 1. I have done MS from US and worked on H-1 for 5 years. Started GC process, I-140 approved with Priority date May 2011. Came to India for H-1 stamping and it was denied twice. If I apply for my H-1 and if I don't get H-1, then can my employer continue processing my GC through Consular Processing when I am in India. Also is there any law stating that my employer can not keep the I-140 when my H-1 has been expired & if it so then for how long can my employer keep my I-140 active?

Question 2. If my employer revoke my I-140 & if I come to US on any other visa, then Can I process my GC and port the PD ?

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

Wednesday, February 10, 2010 - 02:36

Out of Status

Question

How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?

I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock )

(Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

Answer

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'

Monday, February 1, 2010 - 05:50

Importance of having continuity of employment/pay stubs

Question

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Answer

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.

Thursday, January 21, 2010 - 06:54

Tuesday, October 20, 2009 - 04:53

I-140 may get revoked. What happens to priority date?

Question

This is regarding my husband. My Husband's GC is filed through Employer A. His LC & 140 got approved. We did not file 485. He recently got a good job opportunity and transfered his visa to Employer B. We have priority date of Nov 2007 in EB2. But Employer A may revoke the 140 as my husband is no longer an employee of company A. We do have the copy of approved 140 with us. Employer B is wiling to start his GC process this year. Can we port the old 140's priority date even though the original 140 is revoked? Will it be lost if approved 140 is revoked?

Answer

Tuesday, September 1, 2009 - 04:56

Obtaining H-1 Extension beyond 6 years

Question

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

Answer

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.

Tuesday, July 14, 2009 - 01:57

RFE after the I-140 was approved

Question

1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can USCIS go back and raise RFE's in this manner?

2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?

Answer

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.

Tuesday, May 5, 2009 - 01:00

H-1 Extension based upon spouse's 140; Child born in USA

Question

Answer

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.

Wednesday, April 22, 2009 - 01:00

USCIS Finally correct 140 Premium Policy

Question

Answer

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.

Monday, April 6, 2009 - 01:00

Multiple I-140 filings

Question

Our community member spring09 says:

Hi Rajiv,
Thanks in advance. I have an question and keeping me up during nights.
I am working on H1 with comp A, who has filed for my I-140 in Feb-08.
And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B.
Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140.

Thanks again.

Answer

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.

Monday, April 6, 2009 - 01:00

GC future job; H-1 ext. revocation upon 140 denial, etc

Question

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july

I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Answer

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.

Thursday, April 2, 2009 - 01:00

Employers and Employees -- H-1 or EAD?

Question

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction?

Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.

Just trying to find out what the possible advantages would be at this time with EAD.

Answer

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.

Friday, February 27, 2009 - 01:00

CIS Reinstates Limited I-140 Premium Processing

Question

Answer

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

Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are:

1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending?
2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009?
3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then?
4. If at all everything is rejected what can I do to start residency in july if I match?

If all else fails what are my options to continue working in the US?
My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Answer

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.

Tuesday, September 23, 2008 - 01:00

Supervisory review

Question

Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Answer

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.