Change I-140 / Labor in 7th year: new H1-B different co. possible?

A

aaifor

Registered Users (C)
Hello,
I am in my 7th year H-1b extension (got 3 year). PD (EB3) is Aug 2004 and 485 was filed in Nov 2004 (just before the retrogression started in Jan 2005).

Now I get an offer from a leading software firm for full time employment. Their legal dept. says that there is a risk to me if I carry with AC21 since old employer can withdraw I-140.

Apparently the company has an approved LC with PD Apr 2003 and they said that they are considering filing a fresh I-140 based on their pre-approved LC?

Is this even possible?

I thought i got my 7th to 9 year H1B for my current employer based on a pending I-485. If these guys are going to file a new I-140, am i even eligible for a new 7th year H1-B?? They said it is better for me as well since it also gives me an extra 1 year move up on my PD in addition to removing the risk for I-140

I am not sure if their legal dept. is right cause I have not heard or read anything like this. Again I am no lawyer so if any one can corroborate this, it would help me a lot.

Thanks.
 
aaifor said:
Hello,
I am in my 7th year H-1b extension (got 3 year). PD (EB3) is Aug 2004 and 485 was filed in Nov 2004 (just before the retrogression started in Jan 2005).
----------------- do you have your I-140 approved?? if yes you are eligible to use AC21

Now I get an offer from a leading software firm for full time employment. Their legal dept. says that there is a risk to me if I carry with AC21 since old employer can withdraw I-140.
------------- if I-140 is approved and I-485 is pending more than 180 days and you get job with same /similar duties then what is the problem? even if past employer revokes approved I-140 you are protected by AC21

Apparently the company has an approved LC with PD Apr 2003 and they said that they are considering filing a fresh I-140 based on their pre-approved LC?
----------------- let them file if they want (dont forget to write your A# on I-140 form your A# is on your I-485 filing reciept)
Is this even possible?
---- they can file second I-140
I thought i got my 7th to 9 year H1B for my current employer based on a pending I-485. If these guys are going to file a new I-140, am i even eligible for a new 7th year H1-B??
----------- you can get your H1 extensions if your I-485 is pending.
They said it is better for me as well since it also gives me an extra 1 year move up on my PD in addition to removing the risk for I-140
------- let them file I-140
I am not sure if their legal dept. is right cause I have not heard or read anything like this.
------------------ why dont you give them copy of latest AC21 MEMO, you are eligible for AC21 and if they want to file second I-140 for you and waste the money let them do it and dont withdraw your pending I-485


Again I am no lawyer so if any one can corroborate this, it would help me a lot.
Read the latest AC21 Memo:
http://www.shusterman.com/pdf/ac21-51205.pdf
Thanks.
Click to expand...
 
Ginnu,
Thanks for your reply. My I-140 has bee approved for over 2 years . However their legal dept. raised the question:
The current approved I-140 was filed with a labor petition with my name, but if I leave then the current employer can probably use that labor petition to file another I-140 for someone else.

This is not clearly defined by Ac21 or other laws i think, so they want to probably avoid this later on

This is why they do not want to use AC21 for me.

They want to file a fresh I-140, I went through your link for Yates memo. I am not able to see what application it would have on my scenario:

  • 7th year based on previous I-140
  • File Fresh I-140
  • Obtain a new H-1B on new I-140

I just don't want get caught up in this scenario. However the opportunity is really great so I want to not miss it.

Please advise
 
Ginnu..

I am just quoting your response in another thread

[if you interfile the second approved I-140 with I-485 and make a request to approve the I-485 on base of second I-140 then it is not AC21]
Ginnu reply to earlier thread

so if they want me to file a new I-140 based on an approved Labor, then there is no AC21?

In such a case how am i eligibile for 7th year H-1B???
 
aaifor said:
Ginnu,
Thanks for your reply. My I-140 has bee approved for over 2 years . However their legal dept. raised the question:
The current approved I-140 was filed with a labor petition with my name, but if I leave then the current employer can probably use that labor petition to file another I-140 for someone else.
------------- The employer can use that LC for somebody but you are protected by AC21, it does not make any difference to you if past employer uses the LC or revoke the I-140. it may create problem for the second person who use that LC. You are safe and eligible for AC21.

This is not clearly defined by Ac21 or other laws i think, so they want to probably avoid this later on
---------------- do you think now USCIS write new memo for your legal depart. your company lawyer knows that you are eligible to use AC21. if he does not know go to other good lawyer

This is why they do not want to use AC21 for me.
--------------- ask them to give permanent job offer letter with same/similar job duties and invoke the AC21 and also let them file second I-140 if they wish.
They want to file a fresh I-140
----let them do it and also ask for letter and invoke AC21

** you are eligible to get H1 extension based on approved I-140 and also based on pending I-485.
Click to expand...
 
aaifor said:
I am just quoting your response in another thread

[if you interfile the second approved I-140 with I-485 and make a request to approve the I-485 on base of second I-140 then it is not AC21]
Ginnu reply to earlier thread

so if they want me to file a new I-140 based on an approved Labor, then there is no AC21?
------------------ if you are eligible for AC21 then send letter to request AC21, if file second I-140 and it gets approved before I-485 is approved then interfile second I-140 with pending I-485 and request the USCIS to approve the I-485 based on new I-140 (in this case you are not using AC21)

In such a case how am i eligibile for 7th year H-1B???
------------------ based on I-140 approval through past employer and based on pending I-485.
Click to expand...

* do you suspect that new company thinks that if you invoke AC21 you will get GC early or they want to delay the process by filing second I-140 or playing safe(?) do that company legal dept know how many used AC21 in past and got I-485 approved even if I-140 was revoked after I-485 pending more than 180 days? did anybody care what the past employer do with the LC? That is unnecessary discussion and I dont have answer for you. if you have more concerns hire YOUR lawyer and ask for legal advice.
 
Ginnu quoting u

do you suspect that new company thinks that if you invoke AC21 you will get GC early or they want to delay the process by filing second I-140 or playing safe(?) do that company legal dept know how many used AC21 in past and got I-485 approved even if I-140 was revoked after I-485 pending more than 180 days? did anybody care what the past employer do with the LC? That is unnecessary discussion and I dont have answer for you. if you have more concerns hire YOUR lawyer and ask for legal advice.

I doubt that company would try to delay my GC intentionally. I suspect incompetency could play here since i heard they had to file labor for a guy 4 years later again....dont know much on that. It is hard to deal with such incompetency with a Fortune 500 firm esp. when you are not inside.

The HR person said that they wanted to offer me an approved Labor with PD Apr 2003 as an incentive.

Then i meet with the person dealing with immigration.

When I tell her that we could do AC21 she says "I dont know what that is and i have been doing immigration for 10 years".

I was surprised to my horror that this major Silicon valley company had a contractor doing legal work who didnt know AC21

Anyways she calls their lawyer and then calls me and the HR person and says that the lawyer says "What would happen if the labor is transferred to someone else by your current company"

In the Yates memo that you posted it says that the current beneficiary of the labor is eligibile for H-1B extension not the original one.
so maybe this does apply for a pending 485.

So far she says they would file a fresh I-140 based on their approved labor and do a recapture of my 485 filing (something I couldnt ask about :what recapture meant; since she had left).

But here is my confusion:

If they first get an H1B then it is AC21 because of my 7th year filing based on approved I-140. Now if they do another I-140 maybe they would have use G-28 form to file another I-140 and tie it with the filed I-485.

Is this really possible?
 
aaifor said:
Ginnu quoting u

do you suspect that new company thinks that if you invoke AC21 you will get GC early or they want to delay the process by filing second I-140 or playing safe(?) do that company legal dept know how many used AC21 in past and got I-485 approved even if I-140 was revoked after I-485 pending more than 180 days? did anybody care what the past employer do with the LC? That is unnecessary discussion and I dont have answer for you. if you have more concerns hire YOUR lawyer and ask for legal advice.

I doubt that company would try to delay my GC intentionally. I suspect incompetency could play here since i heard they had to file labor for a guy 4 years later again....dont know much on that. It is hard to deal with such incompetency with a Fortune 500 firm esp. when you are not inside.

The HR person said that they wanted to offer me an approved Labor with PD Apr 2003 as an incentive.

Then i meet with the person dealing with immigration.

When I tell her that we could do AC21 she says "I dont know what that is and i have been doing immigration for 10 years".
---------------------------- if she does not know what is AC21 then she should not deal with immigration matters
I was surprised to my horror that this major Silicon valley company had a contractor doing legal work who didnt know AC21

Anyways she calls their lawyer and then calls me and the HR person and says that the lawyer says "What would happen if the labor is transferred to someone else by your current company"
-------------------- may be lawyer said something and she said something elso to you or they have not talked to good lawyer or may be having somebody like the lady who handle immigration. why not to go directly to lawyer? why you cant hire YOUR lawyer and let him inform them that you are eligible for AC21 and he can also talk to company lawyer

In the Yates memo that you posted it says that the current beneficiary of the labor is eligibile for H-1B extension not the original one.
so maybe this does apply for a pending 485.

So far she says they would file a fresh I-140 based on their approved labor and do a recapture of my 485 filing (something I couldnt ask about :what recapture meant; since she had left).
----------------- recapture what? if she mean PD then inform the lawyer that you have I-140 approved and he should request to recapture early PD and also write your A# on I-140 form
But here is my confusion:

If they first get an H1B then it is AC21 because of my 7th year filing based on approved I-140. Now if they do another I-140 maybe they would have use G-28 form to file another I-140 and tie it with the filed I-485.Is this really possible?
---------- H1 transfer or H1 extension has nothing to do with filing of new I-140 or sending permanent job offer letter to request AC21. you can get H1 extension based on pending I-485 and if second I-140 gets approved before the pending I-485 gets approved then one can Interfile the new I-140 with pending I-485 and request the USCIS to approve the I-485 on the base of second I-140
Click to expand...
what is the the PD of earlier I-140 is EB3 or EB2?
the new LC requirements are eligible for EB3 or EB2?? what date that LC was filed???

*** when get confused hire YOUR lawyer. you are eligible for AC21 and your lawyer will work in your Interest and will inform the company what he needs from them to invoke AC21.
 
Ginnu,
The PD is Apr 2003. I am not privy to the details but they generally do EB3 as they have for my friends.

I am still at a loss as to how to proceed with making them let me take my own lawyer.

Thanks for your help. But is what they proposed even possible?

i have made it clearer in a subsequent new post...

thanks
 
Reported by Matthew Oh, Attorney
01/29/2007: Special Alert: DOL Submitted "Final" Regulation of Substitution Elimination Rule to OMB on 01/26/2007

Since this is a final rule, upon approval by OMB, the elimination of substitution and 45-day validity of certified labor certification will be triggered. Take this message as a very special alert! This rule will not only eliminate substitutition on the OMB approval and release in the Federal Register but also kill the certified labor certification unless it is used within 45 days from the date of certification! Please stay tuned to this web site reporting.
The planned implementation day appears to be April 2007. But it can be earlier!
If the final rule retains the proposed rule, those pending substitution I-140 cases which fail to obtain approval can be jeopardized!
 
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