How to retain earlier PD

G

gondalguru

Registered Users (C)
I need some advise on retaining earlier priority date of approved I-140

I am from India and I applied for EB-2 catagory NIW for physician working in HPSA - self petition - with priority date of Sept 2004. I-140 approved in June 2005. As per law I need to wait for 5 yrs before they will approve my I-485 based on NIW for physician.

Currently I am in process of applying PERM through my employer, which hopefully willl get approved in next few months.

My question is when I apply for I-140 based on PERM, Is it possible to retain PD of earlier I-140?

Where can I find law - article - information regarding this issue?
 
gondalguru said:
I need some advise on retaining earlier priority date of approved I-140

I am from India and I applied for EB-2 catagory NIW for physician working in HPSA - self petition - with priority date of Sept 2004. I-140 approved in June 2005. As per law I need to wait for 5 yrs before they will approve my I-485 based on NIW for physician.

Currently I am in process of applying PERM through my employer, which hopefully willl get approved in next few months.

My question is when I apply for I-140 based on PERM, Is it possible to retain PD of earlier I-140?

Where can I find law - article - information regarding this issue?
Click to expand...

as far as i know...perm is only for labor..not i 140..
 
Yor r right. PERM is for labor. But once PERM - labor is approved, I will be able to file I-140 based on the approved labor in EB 2 catagory. And my question is how to retain earlier PD of the prior I-140 when I apply for this new I-140.
 
gondalguru said:
Yor r right. PERM is for labor. But once PERM - labor is approved, I will be able to file I-140 based on the approved labor in EB 2 catagory. And my question is how to retain earlier PD of the prior I-140 when I apply for this new I-140.
Click to expand...

When you file your 485 with the new I140, just attach a copy of the older I140. But ask the lawyer to highlight the fact that you are using the older I40 for priority date, but the newer I140 as the basis for 485. The lawyer should know how to do it, if not he is not a worthy lawyer.

PS: You need to be sure that the older I140 has not been withdrawn, in which case the older PD is lost.

Search the forums for more info, this has been discussed previously.

Sc3
 
Are you sure?

Sc3 said:
PS: You need to be sure that the older I140 has not been withdrawn, in which case the older PD is lost.
Click to expand...

Sc3,

Do you have a link or memo that supports this statement?

My understanding (from a USCIS memo) is that PD is lost only if the previous I-140 was withdrawn because of fraud.

In addition to the memo, Sheila Murthy has also said on her site that PD can be recaptured even if the old employer withdraws 140 in order to use your previous labor for someone else.

Many Thanks.
 
My bad, I dont know about the USCIS memo or Sheila Murthy's opinion (can you point me to them) -- I am in a situation where I have I140 but cant file 485 (sure as hell I am not the only one)... and am looking at my options.
 
Sc3 said:
My bad, I dont know about the USCIS memo or Sheila Murthy's opinion (can you point me to them) -- I am in a situation where I have I140 but cant file 485 (sure as hell I am not the only one)... and am looking at my options.
Click to expand...

Sc3,

1. Attached is the USCIS memo:
"In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation."

2. Sheila Murthy's opinion:
Chat User : Thanks in advance! Can the priority date be transferred from an EB3 case to an EB2 case if the I-140 was approved under EB3?

Attorney Murthy : Yes, a PD from any earlier employment-based case is allowed to be transferred over to any other EB case in the future. So this is useful, but such a transfer of the PD is only possible after the I-140 petition has been approved in the earlier case, even if the employer later uses that earlier LC or revokes that I-140 petition for another employee when the employee leaves that employment! So it is useful to keep evidence of that earlier I-140 approval in your name to be able to request the transfer of the earlier PD for a future case!

3. My own attorney feels that PD can be recaptured.

However I have found some other places where it says that once I-140 is withdrawn, PD is gone. Most notably, Attorney Matthew Oh says this in one of his FAQ.

I am yet to find a person who actually tried to recapture PD this way, and has eithe failed or succeeded. I am in the same boat and am keeping my fingers and toes crossed.
 
My attorney holds the same opinion with OH. He said once the old I140 is revoked or withdrawn, the pd is forever gone. As you are self-partitioned, I don't think you would do it to yourself, right? :D Murthy recommends to use a color page to hightlight the fact you have an older pd.
 
nonogc said:
My attorney holds the same opinion with OH. He said once the old I140 is revoked or withdrawn, the pd is forever gone. As you are self-partitioned, I don't think you would do it to yourself, right? :D Murthy recommends to use a color page to hightlight the fact you have an older pd.
Click to expand...

nonogc

Every attorney has his/her own opinions. Between Oh, Murthy, yours and mine, we have a 2-2 tie :cool:

What matters the most is the regulations itself (and not an individual attorney's interpretation of them).

In the next few months, I'll know if I'm able to recapture the PD or not.

And yes, we will use a color page :)
 
Cool. Thanks Gogol ! Yeah, like you said that there are multiple opinions on the "withdrawal of 140" situations that is why I am not able to put my plans in action. Given these memos I need to research more.

BTW: My attorney (well actually my company's) does not think it is possible to maintain 140 -- but then he is paid by the company and OH's FAQ (I think Q42 or such) gives a very good reason why some attorney's act the way they do.
 
Gogol75 said:
nonogc

Every attorney has his/her own opinions. Between Oh, Murthy, yours and mine, we have a 2-2 tie :cool:

What matters the most is the regulations itself (and not an individual attorney's interpretation of them).

In the next few months, I'll know if I'm able to recapture the PD or not.

And yes, we will use a color page :)
Click to expand...

Cool. Let us know how everything progresses!!

BTW: Are you refiling PERM/140 with the same company or a different company?
 
Thanks guys for replies.

My first I-140 is a self petition - current - approved - EB2 - under NIW for physician regulation with PD of 09/2004. I-485 filed in 11/2004 - fingerprints done. AP-EAD obtained.

The second I-140 will be filed by my current empolyer after PERM approval.

I am applying both ways to maximize the changes of getting early GC, as with NIW based application I have to wait for total of 5 yrs before getting GC.

With current retrogressed situation it seems that the second EB-2 petition will be of not much help.
 
You must log in or register to reply here.
Top