7th year_Job change_need serious help!!!

[shailu76]

Hello All
i need some serious help in this matter…

Situation:
1. H1B 7th year ext started in Jan 06
2. LC is approved with PD July 02
3. I-140 filled

Questions:
1. Got a good opportunity with Company B.

2. Can I change jobs now and still get 8th year ext? Company B is ready file LC through PERM and it may get approved in few months but it will not have been filed 365 days in advance. Is this a problem even though the LC through PERM is approved or is it just for LC cases which are still pending?

3. Is it better to wait for I-140 approval and then change jobs so that I can keep the priority date?

Please please advice on this. Thanks a lot to all the gurus and experts.
sha

 

[EricS]

Hello All
i need some serious help in this matter…

Situation:
1. H1B 7th year ext started in Jan 06
2. LC is approved with PD July 02
3. I-140 filled

Questions:
1. Got a good opportunity with Company B.

2. Can I change jobs now and still get 8th year ext?

If you have a copy of LC that shows PD as 02 or some other proof that you LC was filed in 02, then you can get 8th year ext with new co. based on this LC of old co.

Company B is ready file LC through PERM and it may get approved in few months but it will not have been filed 365 days in advance. Is this a problem even though the LC through PERM is approved or is it just for LC cases which are still pending?

3. Is it better to wait for I-140 approval and then change jobs so that I can keep the priority date?

Yes, it will be better if you wait for this 140 to be approved. Search for Pearson memo in this forum and you will find more details. I think you need bot 140s approved to txfr the PD.

Please please advice on this. Thanks a lot to all the gurus and experts.
sha

 

[GotPR?]

I think unless beneficiary has intent to join sponsor and employer has intent to hire him/her upon GC approval, s/he needs to file LC and I140 again with new employer. If I140 with old employer has been already approved, s/he can take advantage of old PD, provided old employer does not revoke I-140.
If I-140 was not approved yet, s/he may lose ability of further extension when old employer revoked LC, because new LC(w/ new employer) may not be reaching 365 days upon expiration of H1.

 

[shailu76]

7th year and keeping PD

Hello EricS and GotPR
thanks for your reply. I just saw some discussion around Pearson memo.
In my situation, my new employer is ready to file for new LC and my old employer is ready to continue the case.

I also read a post about filing for EB2 with the new employer and being able to keep the EB3 PD.

So here is how I see it working, please let me know if you see any risks.

1. Company A is ready to keep the case going (EB3 LC approved with PD July 02, I-140 approved)

2. Company B is ready to transfer my H1B. I am in 7th year ext.

3. Company B will file for new LC through PERM in EB2 category. (I have MS degree and more than 5 years experience)

4. Once the new LC is approved we will file for I-140 (EB2). This whole process am guessing will take atleast 9-10 months.

5. Once I get new I-140 in EB2, I will make a request to keep my PD from EB3 which is July 02. Do I have to request this at the time of filing for new I-140 or after?

6. by this time PD for EB2 category will be current (July 2002) and I will be able to file for 484.

Please advice if you see any risks in this. What if EB3 PD becomes current in next few months and I have to file for 484? Do I have to go back to my previous employer?
Thanks a lot for all your help
Sha

 

[EricS]

Hello EricS and GotPR
thanks for your reply. I just saw some discussion around Pearson memo.
In my situation, my new employer is ready to file for new LC and my old employer is ready to continue the case.

I also read a post about filing for EB2 with the new employer and being able to keep the EB3 PD.

So here is how I see it working, please let me know if you see any risks.

1. Company A is ready to keep the case going (EB3 LC approved with PD July 02, I-140 approved)

2. Company B is ready to transfer my H1B. I am in 7th year ext.

3. Company B will file for new LC through PERM in EB2 category. (I have MS degree and more than 5 years experience)

4. Once the new LC is approved we will file for I-140 (EB2). This whole process am guessing will take atleast 9-10 months.

5. Once I get new I-140 in EB2, I will make a request to keep my PD from EB3 which is July 02. Do I have to request this at the time of filing for new I-140 or after?

I think once 2nd 140 is approved, but not sure.

6. by this time PD for EB2 category will be current (July 2002) and I will be able to file for 484.

Please advice if you see any risks in this. What if EB3 PD becomes current in next few months and I have to file for 484? Do I have to go back to my previous employer?
Thanks a lot for all your help
Sha

No, you do not need to go back to your previous employer in order to file 485. GC is for future employment and you have to join that employer once GC is approved. That said,there are other risks associated though, one of those being the Ability to pay. Lets say you leave employer A in April 2006 and join B. Then in Dec 2006, your PD become current and you file for 485 based on 140 from employer A. Now A was not paying you from April to Dec, so if a RFE for ability to pay comes, then A will have to show that they had so much profit to cover the pay for these months. If you still do not join A in Dec,the A2P risk continues for coming months too, untill your GC is approved.

Your best bet will be to transfer the PD once 2nd 140 gets approved. Over all it looks your plan will work as you have mentioned. Most important: Since what you are going to attempt is not that common, I would suggest talk to a good immigration lawyer and act based on his/her advise.

 

[shailu76]

Hello Eric
Thanks for your suggestion.
Can you please explain what A2P is again? and whats "ability to pay" is for?

i think i dont understand that part.
I will be talking to a lawyer this thursday. I will let you know what he says about this too.
thanks
sh

 

[EricS]

Hello Eric
Thanks for your suggestion.
Can you please explain what A2P is again? and whats "ability to pay" is for?

i think i dont understand that part.
I will be talking to a lawyer this thursday. I will let you know what he says about this too.
thanks
sh

A2P is short for Ability to (2) Pay. So what this stands for is that lets say you are working for company A. They apply for your LC in Jan 2004. In the LC they mention that they will be paying you $80K per year. Lets say for some reason, they only pay you 60K in 2004. In 2005 they pay you full 80K. LC gets approved in Jan 2006 and now the company apply 140 for you. The USCIS will (may) send a RFE/Denial for that 140. The reason will be that you were not paid the wage as mentioned in the LC. This is called RFE or denial based on A2P. To overcome this issue, the company need to prove that although they paid you 20K less in 2004, but thay had that much profit (based on annual tax return) to cover the difference. To learn more about A2P, read the following thread by user UnitedNations and you can also contact him for guidance, his contact details are in his signature (in that thread):
http://www.immigrationportal.com/showthread.php?t=137088

In your actual case, your 140 from A is filed and pending. Now In the previous example that I quoted, if you are not working for A from April to Dec 06, you will obviously not be getting paid for that period. Then A need to show that much profit to overcome the A2P issue. If you leave that employer before your 140 is approved, USCIS may/will go back and question the Ability to pay as it need to exist from PD up to the approval of GC.That is how it relates to your case.

 

[shailu76]

Got it.
Thanks a lot. I have a meeting with a lawyer this thursday. I will update you on what he has to say about this.
thanks a bunch again
sh