Can i Retain old PD(EB3-RIR) to (EB2-PERM) ?

[satgym73]

Hello Friends,

My EB3-RIR LC has Priortity Date (PD) 10/13/2003. Based on this LC i had filed I-140 & I-485 @NSC concurrently on 10/18/2004. My I-140 got denied due to Ability to Pay (i think the actual reason was company filed too many I-140 petitions). We did applied MTR/Appeal in 10/2005 and it moved to AAO on 10/25/2005 & i'm waiting for a decision from AAO (approx processing time is 18 months for this catagory in AAO).

I don't know whether i can have hopes that it'll get clear in AAO. B'cos the % of approvals at AAO is < 5% itseems. Atleast if i get some RFE in AAO and it gets approved...really i'll be the happiest person.

Now i'm in the initial process of applying Labor in PERM in EB2 catagory. Once it's been certified, before applying I-140 (or) I-485 based on this PERM, can i retain the old PD (10/13/2003) for this new one?. Please let me know at what stage i have to take care of this in order to keep the old PD (priority date).

Really i'd lost my enthu..patience..energy this time to do and go thru this process once again. First of all can i have EB3's PD to EB2's?. So, please suggest me your valuable thoughts on my boaring situation. The job title under EB3 was Programmer/Analyst (Bachelors degree + 2 yrs exp) & EB2 is Software Engineer (Bachelors degree + 5 yrs exp)

Thanks in advance!

 

[EricS]

Hello Friends,

My EB3-RIR LC has Priortity Date (PD) 10/13/2003. Based on this LC i had filed I-140 & I-485 @NSC concurrently on 10/18/2004. My I-140 got denied due to Ability to Pay (i think the actual reason was company filed too many I-140 petitions). We did applied MTR/Appeal in 10/2005 and it moved to AAO on 10/25/2005 & i'm waiting for a decision from AAO (approx processing time is 18 months for this catagory in AAO).

I don't know whether i can have hopes that it'll get clear in AAO. B'cos the % of approvals at AAO is < 5% itseems. Atleast if i get some RFE in AAO and it gets approved...really i'll be the happiest person.

Now i'm in the initial process of applying Labor in PERM in EB2 catagory. Once it's been certified, before applying I-140 (or) I-485 based on this PERM, can i retain the old PD (10/13/2003) for this new one?. Please let me know at what stage i have to take care of this in order to keep the old PD (priority date).

Really i'd lost my enthu..patience..energy this time to do and go thru this process once again. First of all can i have EB3's PD to EB2's?. So, please suggest me your valuable thoughts on my boaring situation. The job title under EB3 was Programmer/Analyst (Bachelors degree + 2 yrs exp) & EB2 is Software Engineer (Bachelors degree + 5 yrs exp)

Thanks in advance!

IMO, you can only retain the priority date from previous LC/140 if that 140 is approved and is still valid. Still valid means it is not withdrawn or revoked etc.

In your case, your previous 140 is not approved so you cannot retain your PD. This issues has been discussed in detail on this forum, if you search you will get more details on how and when you can retain the PD.

BTW, I do not think there is anything like a RFE from AAO, they will decide based on whatever documents you have provided with your appeal.

 

[satgym73]

EricS,

Thanks for the reply. They denied all the I-140 at that time, due to company's bad financial status for the tax year 2003 i think. I joined the company in mid of 2004 and from that time i'm maintaining the proffered wages as mentioned in my LC. So, i thought if they consider case by case @AAO, then they may ask for recent W2's for each case. So, if they issue RFE again, i can submit my W2 for 2005 (with full year wages) and 2004 (with part year wages). Then there is positive chances to get my I-140 approved...right ?. But i don't know...what to do...sometimes i think whether applying one more time (thru PERM) is really worth by considering this retrogression.

 

[EricS]

EricS,

Thanks for the reply. They denied all the I-140 at that time, due to company's bad financial status for the tax year 2003 i think. I joined the company in mid of 2004 and from that time i'm maintaining the proffered wages as mentioned in my LC.

The proffered wage need to be maintained from LC PD, otherwise company need to show the A2P. SO 2003 tax return does come into picture in your case too, although you joined in 2004.

So, i thought if they consider case by case @AAO, then they may ask for recent W2's for each case. So, if they issue RFE again, i can submit my W2 for 2005 (with full year wages) and 2004 (with part year wages). Then there is positive chances to get my I-140 approved...right ?.

AAO may consider each case individually, not sure, but once again I have never heard of AAO asking for additional documents, may be it is just my limited knowledge.

But i don't know...what to do...sometimes i think whether applying one more time (thru PERM) is really worth by considering this retrogression.

I personally think that you should apply in PERM, as you are planning to. It may take you some more years, but atleast if you maintain your proferred wage, you will be sure that there will be no A2P issues.

 

[satgym73]

Thank you EricS!

 

[satgym73]

Hi EricS,

I'm doing PERM with same employer in EB2. Suppose my I-140 gets denied @AAO, still can i use my EB3 old priority date (PD - 10/13/2003) to file I-140/I-485 after my new labor (perm) gets cleared, since i'm working for the same company and they didn't used my old labor for some one else. Please reply.

And also let me know...is the total gross should match to the proffered wage (or) the wages in box 1 should match proffered wage as mentioned in the LC.

Thanks!

 

[EricS]

Hi EricS,

I'm doing PERM with same employer in EB2. Suppose my I-140 gets denied @AAO, still can i use my EB3 old priority date (PD - 10/13/2003) to file I-140/I-485 after my new labor (perm) gets cleared, since i'm working for the same company and they didn't used my old labor for some one else. Please reply.

And also let me know...is the total gross should match to the proffered wage (or) the wages in box 1 should match proffered wage as mentioned in the LC.

Thanks!

I replied to your PM.