PD Porting After Change of Employer

[Anand_Mishra]

Gurus, please let me know if i have chance to get my old PD.

CompanyA:
1) RIR LCA with PD: June 2003, India, EB3 I-40 Approved (AD: Nov 2006), I-485 applied on RD:July 2nd 2007 with this I-140
2) OLD stuck remanded LCA with PD: July 2001, India, EB3 I-140 Approved on Oct 2007

I thought of interfile when date will be current for my old I-140 with PD: July 2001. BUT now company is closing our unit so I have my job till March 2008. I am also exploring the options to relocate to other unit, if possible. If it didn't work out then what are my options to retain old PD.

I have few questions:
1) Can I utilize/interfile I-140 (PD: July 20 2001) with my pending I-485 even if after moving to new company X?
2) if yes, what will be the process?

[manwithnoname]

What I heard from my employer is that interfiling requires priority dates to be current. Much depends on your current employer - as GC is for future employment, your employer should furnish eveidence to hire you for the position mentioned in July 2001 LC.

[Anand_Mishra]

Employer is big company so i don't except anything from HR after march 08. I am asking other options/suggesations, if any.

What I heard from my employer is that interfiling requires priority dates to be current. Much depends on your current employer - as GC is for future employment, your employer should furnish eveidence to hire you for the position mentioned in July 2001 LC.

[rollingstone]

As per Pearson memo, you can port PD to existing AOS application only if both I-140 are current AND within same preference category, eg EB-3 to EB3 or EB-2 to EB-2.

[worrieddude]

In the worst case, join another company. Will need to file another GC application, file I-140/I-485, capturing the 2001 PD. This may add another 6 months to a year to your GC process depending on how fast the new company files LCA.

[TheRealCanadian]

As per Pearson memo, you can port PD to existing AOS application only if both I-140 are current AND within same preference category, eg EB-3 to EB3 or EB-2 to EB-2.

This is not correct. The Pearson memorandum allows porting of PDs within the same preference category, namely EB or FB. You can convert an EB3 PD to an EB2 case, so long as the EB3 I-140 is approved.

You are also confused on the requirement for the PDs to be current. While the Pearson memorandum requires this if you are substituting I-140s and changing employers, if you merely want to take advantage of the older PD you should be fine.

[Anand_Mishra]

I got confuse. I was under impression that you can request interfile to USCIS only if your I-140 PD is current per VB. You says thats not correct.

So
I will be given older PD(July 2001) by USCIS for AOS. I even don't have to write to USCIS to interfile 140 with older PD.
OR
I can write to USCIS to interfile I140 for AOS even though my approved older PD(July 2001) is still not current per VB.
OR
Some other process to notify USCIS.

Any clarification will be helpful.

This is not correct. The Pearson memorandum allows porting of PDs within the same preference category, namely EB or FB. You can convert an EB3 PD to an EB2 case, so long as the EB3 I-140 is approved.

You are also confused on the requirement for the PDs to be current. While the Pearson memorandum requires this if you are substituting I-140s and changing employers, if you merely want to take advantage of the older PD you should be fine.

[TheRealCanadian]

I got confuse. I was under impression that you can request interfile to USCIS only if your I-140 PD is current per VB. You says thats not correct.

That's not why you're confused - you are confusing interfiling with claiming an earlier priority date. The two are separate concepts. Interfiling involves substituting the I-140 and the employer, where porting the PD does not.

I will be given older PD(July 2001) by USCIS for AOS. I even don't have to write to USCIS to interfile 140 with older PD.

You do not need to interfile unless the job in the 2001 LC is the job you will be filling after your GC is approved. You merely request that USCIS use the earlier PD.

[Anand_Mishra]

Thank you. This case job description is same for both 140s.
If any one has template letter for USCIS to claim PD porting request. Please post.

That's not why you're confused - you are confusing interfiling with claiming an earlier priority date. The two are separate concepts. Interfiling involves substituting the I-140 and the employer, where porting the PD does not.

You do not need to interfile unless the job in the 2001 LC is the job you will be filling after your GC is approved. You merely request that USCIS use the earlier PD.

[rollingstone]

Here's what the memo says

"Can the adjustment application basaed on an approved immigrant petition (either I-130 or I-140) with a current priority date be transferred to a subsequent immigrant petition that is approved with a current priority date? In many instances, the answer is yes ..."

and later

"However, a priority date may not be transferred to another preference category."

Seems pretty clear. Both old and new I-140 needs to be current. Preference category means "second" or "third", meaning EB-2 or EB-3 etc. You cannot change an EB-3 based AOS to EB-2.

And of course you cannot use EB 140 for FB immigration, 140 is for EB only - you don't need a memo for that.

This is not correct. The Pearson memorandum allows porting of PDs within the same preference category, namely EB or FB. You can convert an EB3 PD to an EB2 case, so long as the EB3 I-140 is approved.

You are also confused on the requirement for the PDs to be current. While the Pearson memorandum requires this if you are substituting I-140s and changing employers, if you merely want to take advantage of the older PD you should be fine.

[TheRealCanadian]

Seems pretty clear. Both old and new I-140 needs to be current.

We're not talking about transferring the adjustment from one I-140 to another; we're just talking about claiming an earlier priority date.

Preference category means "second" or "third", meaning EB-2 or EB-3 etc. You cannot change an EB-3 based AOS to EB-2.

No, it means EB or FB in general.

[rollingstone]

No, it means EB or FB in general.

Read the visa bulletin. See how the word "category" is used. For Example, the Dec. bulletin says:

The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. (Which is why if you are EB-3 or EB-2 India right now with PD > 2001, you cannot get a GC). Also,

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually.... (talking about some kind of special EB-3 category)