guys - i have come across this interesting info - people stuck in retrogression with old PD's (say Jan 2003) in EB3 (I-140 approved) are applying again on EB2 with Jan 2006 PD and getting their I-140 approved again..apparently when the EB2 dates will eventually move to Jan 2003, instead of using Jan 06 EB2 as their PD, they can claim their older Jan 03 EB3 as the PD for their EB2 case..is this possible? according to my friends, its completely valid.
2002 Eb3 & 2006 Eb2 I-140 approved..PD's interchangeable?
- Thread starter puhrince
- Start date
It is possible but...
The new job will need EB2 type qualifications and the alien will need to have those.
I am guessing your friends are saying they have so much experience that they now qualify for EB-2 -- however, to the best of my knowledge, "experience gained for the same job by the same employer cannot be used as a requirement." Please see: http://www.immigrate2usa.com/labor certification.html
So, this could be doable, except one will need to change employers.
The new job will need EB2 type qualifications and the alien will need to have those.
I am guessing your friends are saying they have so much experience that they now qualify for EB-2 -- however, to the best of my knowledge, "experience gained for the same job by the same employer cannot be used as a requirement." Please see: http://www.immigrate2usa.com/labor certification.html
So, this could be doable, except one will need to change employers.
puhrince said:
The intend of this provision in the law is, if any one could not complete green card journey after 140 apporval through one employer (let say employer A does not intend to offer a full time job after 140 filing and does not revoke it) and the employee resigns from employeer A and joins with employer B starts a new GC process through employer B. In this case, if evereything is bonafide, the employee can use the PD from the employeer A in employer B sponsership.
If any one wants to use this provision just to gain the fast approval may be consitutes a fraud. This will be definitly a fraud if one try with same employer, as one employer cannot offer two jobs for one employee i.e one with EB3 requirement and other with EB2 requirement.
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puhrince said:
They can have 2 LC with the same employer EB2 and EB3 ONLY IF
1) They were qualified for EB2 by the time they join the employer (in the other words, they got EB2 without any exp or education gain with the same employer)
2) If they plan to use exp and education gain with the same employer, they must prove the new job is completely different from the old one like going from hardware engineer to software engineer or to sale support engineer... Many ways to deal with. But they must provide the different or they will consider fraud later on.
puhrince said:
This will not defintly work with USCIS and it may get suspected as a fradulant employer. When you file a second I-140 with same employer, he has to answer a question in form I-140 "Has any immigrant visa petition ever been filed by or on behalf of this person?If you answered yes to any of these questions, please provide the case number, office location, date of decision and disposition of the decision on aseparate sheet(s) of paper"
They cannot say NO. If they say "no" it is a fraud. If they say "yes", they they have to justify why they are filing a second I-140 when an I-140 was already filled/approved. They wil send a RFE or notice of denial. Even, if USCIS accepts the employers answer for the two I-140 for one employee (it is very unlikly), they will not definity accept to reatin the old PD. It is a risk for both I-140s. It will s***rw up entire GC process.
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unitednations said:
UN has contributed very good information in this forum. However, I respectfully disagree with this information. INA explicitly did not define this clause for this situation. In a very simple term it defines the PD carry over from one I-140 to other. The intension of this law is as I mentioned above. No one has exprimented this, just for getting out of retrogression, as it is not meant for it. No one knows how I-140 adjudicators take a decision in this situation. The employer can give only one reason for filing a 2nd I-140 on behalf of same employee. They can justify that the employee was offered a new position with EB2 requirements and the first employment offer(EB3) has been no longer exists. Employer cannot offer two different jobs to single person in future. If the first position was no longer exist, the underlying first I-140(EB3) is invalid and therfore the first PD will automatically get lost. If USCIS approves second I-140, they will automatically cancel the first one.
However, if it is not the case if two different employers involved in this process.
I know one person whose second I-140 was denied for same employer, as he answered to that question. Again, I am not an attorney. One want to expriment, it is their own risk. My advise is to consult with good attorney for this kind of complex matter.unitednations said:How do you know that no one has done it. I know quite a few who have done it with the same employer.
As I stated before, this was a very hot topic back in September. Many people checked with their lawyers and were given the green light to do so.
There isn't much room for intent in laws in USA.
The part of the I-140 that you have mentioned which asks if an I-140 petition has been filed before is not specific to the employer. If anyone has filed one before you need to answer it yes (approved or not approved). One of the reasons for this question is to see if they can transfer the priority date for you or not.
By your reasoning if a person files a labor and 140 with the company and it gets denied for education mismatch or ability to pay and then company files another labor for the person then that is illegal and not within the intent since beneficiary is getting sponsored for a different job now?
When DOL came out with their FAQ that it was one labor per beneficiary, just about every lawyer threatened lawsuits and DOL backed away from their stance. Now they say they won't approve second labor if it is for the same job opportunity in same geographic location.
Not to sound too critical but I've found the people who want to argue this are the ones who are not in position to do this and are afraid they are going to miss their place in line since people are going to jump over them.
In my view, it is abusing the system like labor subsitution. As peoples abusing the system like labor subsituiton, filing multiple labors, and above mentioned process, it makes USCIS to take rough stand on other genune peoples in the line. Unfortunallty, as UN mentioned, if USCIS/DOL try to introduce some steps, all lawyers threatens law suit. This makes the bad immigration system as very worst. A real U.S employer will not do this. Only those who are in this "bussiness" will do like filing multiple labors, filing multiple I-140 and making the pipeline get clog.
As you mentioned, the memo does not address, if the second petition is from the same employer. It is upto the adjudicators judgement, if two I-140 is presented from same employer for the same beneficiary. The previous to last paragraph says the adjudicators go by case-by-case and request additonal eveidence for PD transfer.
unitednations said:
I am also not going to discuss/argue this one further with you. As I mentioned earlier I suggest others to get advise from "good" attorney on this kind of complex issue. By the way, I was searching Murthy chat and OH law firm web site regarding filing 2 I-140 from same employer for same employee and transfer PD. I could not find. Appreciate, if you post their advise here, so that it will be beneficial to others. Thanks. I stop here.
Hello gurus,
When I was thinking about priority dates, there is one doubt came in my mind. I am from INDIA (EB3) prioritydate is July 2003. My I140 is applied not I485 because of cut-off dates problem.I have a daughter born in USA and my wife is from India too. I am getting following doubts.
1. Do I have option to consider myself in category of World (other than India,china,Philippine) for filling I485, by taking advantage of my daughter birth place (i.e USA).
2. I came to know that if my wife/children (any dependent) born in other country, I can take advantage of cutoff-dates of birth plcae (other than effected countries). If this is true, why can't I take advantage of my daughter who born in USA?
Please clear me above dubts. Thanks for your info in advance.
When I was thinking about priority dates, there is one doubt came in my mind. I am from INDIA (EB3) prioritydate is July 2003. My I140 is applied not I485 because of cut-off dates problem.I have a daughter born in USA and my wife is from India too. I am getting following doubts.
1. Do I have option to consider myself in category of World (other than India,china,Philippine) for filling I485, by taking advantage of my daughter birth place (i.e USA).
2. I came to know that if my wife/children (any dependent) born in other country, I can take advantage of cutoff-dates of birth plcae (other than effected countries). If this is true, why can't I take advantage of my daughter who born in USA?
Please clear me above dubts. Thanks for your info in advance.
Hello gurus
When I was thinking about priority dates, there is one doubt came in my mind. I am from INDIA (EB3) prioritydate is July 2003. My I140 is applied not I485 because of cut-off dates problem.I have a daughter born in USA and my wife is from India too. I am getting following doubts.
1. Do I have option to consider myself in category of World (other than India,china,Philippine) for filling I485, by taking advantage of my daughter birth place (i.e USA, assuming EB3 for worldis current).
2. I came to know that if my wife/children (any dependent) born in other country, I can take advantage of cutoff-dates of birth plcae (other than effected countries). If this is true, why can't I take advantage of my daughter who born in USA (assuming EB3 for world is current)?
Please clear me above dubts. Thanks for your info in advance.
When I was thinking about priority dates, there is one doubt came in my mind. I am from INDIA (EB3) prioritydate is July 2003. My I140 is applied not I485 because of cut-off dates problem.I have a daughter born in USA and my wife is from India too. I am getting following doubts.
1. Do I have option to consider myself in category of World (other than India,china,Philippine) for filling I485, by taking advantage of my daughter birth place (i.e USA, assuming EB3 for worldis current).
2. I came to know that if my wife/children (any dependent) born in other country, I can take advantage of cutoff-dates of birth plcae (other than effected countries). If this is true, why can't I take advantage of my daughter who born in USA (assuming EB3 for world is current)?
Please clear me above dubts. Thanks for your info in advance.