Approved 140 over 8 yrs ago and laid off

[shevas]

I would really appreciate some input while I try to navigate this really difficult time. I am an Indian born Canadian citizen and was laid off from an American company after 18 year, with my last day being August 2 so my grace period of 60 days ends on October 1. The employer had filed for my PERM and I-140 was approved back in 2016 with a priority date of January 2016. The lawyers at the employer said since we’re more than 180 days out from the approved I140, it is ours to keep and we can use our old priority date.
I am looking for a new employer and am open to one who either hires me on a TN or H1 within the 60-day grace period. I have 2 questions:

1. If/when I get this new job, and let’s say the employer agrees to a H1, will this be considered a H1 transfer? Does this employer need to file PERM and 140? Is it called filing or porting? Can I get on the employers H1 and then request the employer to file/port(based on what I ned to do) the PERM and I-140?

2. If/when I get this new job, and let’s say the employer agrees to a TN, does this employer need to file PERM and 140? Is it called filing or porting? Can I get on the employers TN and then request the employer to file/port(based on what I ned to do) the PERM and I-140?

 

[bigboy00]

I would really appreciate some input while I try to navigate this really difficult time. I am an Indian born Canadian citizen and was laid off from an American company after 18 year, with my last day being August 2 so my grace period of 60 days ends on October 1. The employer had filed for my PERM and I-140 was approved back in 2016 with a priority date of January 2016. The lawyers at the employer said since we’re more than 180 days out from the approved I140, it is ours to keep and we can use our old priority date.

- The lawyers at your employers are incorrect. The approved I-140 is YOURS. They CANNOT use it for anyone else. If the i-140 is NOT approved, then they can kill it and use the underlying PERM for someone else.

The original approval notice is THEIRS, but all you need is a copy of the approval notice if you plan on recapturing your priority date.

1. If/when I get this new job, and let’s say the employer agrees to a H1, will this be considered a H1 transfer?

- Yes, if you can find a job within your I-94 validity period.

Does this employer need to file PERM and 140? Is it called filing or porting? Can I get on the employers H1 and then request the employer to file/port(based on what I ned to do) the PERM and I-140?

- You will most likely need to refile PERM and I-140 to recapture the PD. Do not worry about the terminology of filing/porting at this stage. This will come AFTER you find an employer who is willing to hire you AND sponsor your GC.

2. If/when I get this new job, and let’s say the employer agrees to a TN, does this employer need to file PERM and 140?

- Yes.

 

[shevas]

- The lawyers at your employers are incorrect. The approved I-140 is YOURS. They CANNOT use it for anyone else. If the i-140 is NOT approved, then they can kill it and use the underlying PERM for someone else.

Correct, they said since it's been more than 180 days, it was mine to port. Since my i-140 was approved 8 years ago with the PERM, they can no longer kill it, right?

The original approval notice is THEIRS, but all you need is a copy of the approval notice if you plan on recapturing your priority date.

I have a copy of the approved i-140, do I need to ask the employer for anything else in relation to the PERM and i-140 before my last day?

- Yes, if you can find a job within your I-94 validity period.

You mean within the 60-day grace period? My current i-94 expires in April 2025, but since I was laid off, the last date before which I should either change my status or leave the country is now the 60th day?

- You will most likely need to refile PERM and I-140 to recapture the PD. Do not worry about the terminology of filing/porting at this stage. This will come AFTER you find an employer who is willing to hire you AND sponsor your GC.


- Yes.

What happens if I find an employer who is either willing to transfer my H1 but not sponsor GC at the moment? Can I get this job and then look a change in employment to find an employer will sponsor my GC by filing PERM and 140?

Thank you so much for answering my questions, and helping support me during this difficult time

 

[bigboy00]

Correct, they said since it's been more than 180 days, it was mine to port. Since my i-140 was approved 8 years ago with the PERM, they can no longer kill it, right?

- It is better to confirm their "no objection" while you are still in "grace period" - your new/future employer might be interested in that. They can no longer kill it, but they can withdraw (low possibility if you were in good terms with your employer).

I have a copy of the approved i-140, do I need to ask the employer for anything else in relation to the PERM and i-140 before my last day?

- No, all you need is the copy of your I-140 approval notice (and confirmation of their No objection for your recapturing the PD)

You mean within the 60-day grace period? My current i-94 expires in April 2025, but since I was laid off, the last date before which I should either change my status or leave the country is now the 60th day?

- This is what my understanding is: You need to find another job within 60 days - that's the grace period. You asked about the H1B transfer - for that, it should be before I-94 validity (Apr. 2025)

What happens if I find an employer who is either willing to transfer my H1 but not sponsor GC at the moment? Can I get this job and then look a change in employment to find an employer will sponsor my GC by filing PERM and 140?

- Your immediate goal should be to land a "safe spot" - i.e. to continue being "in - status". If they are willing to sponsor your GC, it is great - just continue with that job. If not, that job is your stepping stone for the status and your search for the employer (willing to sponsor GC) should continue.

 

[shevas]

- It is better to confirm their "no objection" while you are still in "grace period" - your new/future employer might be interested in that. They can no longer kill it, but they can withdraw (low possibility if you were in good terms with your employer).



- No, all you need is the copy of your I-140 approval notice (and confirmation of their No objection for your recapturing the PD)


- This is what my understanding is: You need to find another job within 60 days - that's the grace period. You asked about the H1B transfer - for that, it should be before I-94 validity (Apr. 2025)


- Your immediate goal should be to land a "safe spot" - i.e. to continue being "in - status". If they are willing to sponsor your GC, it is great - just continue with that job. If not, that job is your stepping stone for the status and your search for the employer (willing to sponsor GC) should continue.

Thank you so much for answering all my questions during this especially difficult time