I-140 Approved Client Wants to Hire Full Time

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rat_race

Registered Users (C)
My I-140 is approved under EB2 Category (PD Dec 2005). I have been working as a consultant with this client for 6 months. Now he is offering me Full Time position. What should I do? I have heard that one can change employer and retain the PD. I have few queries about this situation.

1. Is this a reliable method? Or one has to depend on the choice of the Employer so that he does not substitute the labor or cancel I-140.
2. Should I accept this Full Time position because monetary/benefit wise this is better option?

I am just stuck in the rat race of GC :(
I wish I wouldn't have applied.
 
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As your I-140 has been approved the priority date of the first labor is yours to keep for any subsequent GC process anywhere in the US.Make sure you have a copy of the approved I-140. So if the new employer applies for your PERM and I-140 you come back to the exact same spot you are standing at right now as for GC with the new permanent position.You can then use the PD Dec 2005 for your subsequent process when filing for I-485.

Alternatively if your present employer is based in the same state and co-operates with you then the entire process is transferable as the job description would remain the same in this case.

Check these options with your lawyer and make a decision.Personally I would think it does not make sense to let good things go.
 
Since you seek advice, young man, I give it freely.

PD of Dec 2005 is currently almost meaningless. There will need to be some sort of legal reform before your case has any reasonable chance of approval if you're from India. At the current pace, it could take 10+ yrs for you to be able to apply for the GC.

However, your PD of Dec 2005 is yours to keep, as already pointed out. So talk to the prospective employer and ask them to transfer your existing PD to your new application. If it's a big corporation ( like Motorola, Citigroup, Pfizer etc), they'll refuse as they'll have "standard procedures" to follow. If it's a mid-size company, they will probably help and a small size company is sure to help.

If they refuse, take the job and restart the entire process. The reason is that when you're a full time employee, you don't just have a job, you have a career. You have chances of promotion and growth, not to mention paid vaction, medical benefits and retirement plans.

So all things considered, it's best to take up this offer but put up your best fight to make them let you keep your old PD.

Which country are you from? This is very important.

Now think well and choose wisely...
nj_skm
 
It means that this PD is my private property :) and no one can cancel it. What if my employer substitute this labor for someone else, in that case that person will also get that same PD.
 
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rat_race said:
What if my employer substitute this labor for someone else, in that case that person will also get that same PD which is a serious flaw in this process.
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If someone else also gets your PD, how is that a flaw? Why do you care?
 
If your new employer does not transfer your old PD over then your current employer can use that PD for someone else and there's little you can do to stop it.
You haven't answered the all-important question: which country are you from? This will determine the worth of your Dec 2005 PD.
 
rat_race said:
It means that this PD is my private property :)
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No it isn't. If your current employer cancels the I-140 before you file your new I-140, your PD will be gone.

Make sure to cooperate with your current employer. Take them into confidence early in the process. Seek their advice.Mention them that you'll try to get get more of their people into the client company. Leave at good terms to minimize risks.

Whatever one cay say about value of Dec 2005 PD, it cannot be worse than PD of Dec 2006 in the same category. So, it's still worth saving.
 
nj_skm,

Can the current employer use the PD for someone with the same job function and profile or is it just totally transferable to anybody else without restriction?



nj_skm said:
If your new employer does not transfer your old PD over then your current employer can use that PD for someone else and there's little you can do to stop it.
You haven't answered the all-important question: which country are you from? This will determine the worth of your Dec 2005 PD.
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PD is gone when I-140 is revoked

rat_race said:
It means that this PD is my private property :) and no one can cancel it.
Incorrect. If employer withdraws I-140, PD is gone even if your new I-140 is approved with new employer.

What if my employer substitute this labor for someone else, in that case that person will also get that same PD.
Yes, that person will get that PD. That person's skill profile must match with LC job requirements on PD. It does not matter if that person was in US on that PD date or not.
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nyc8300 said:
nj_skm,

Can the current employer use the PD for someone with the same job function and profile or is it just totally transferable to anybody else without restriction?
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That person's skill set must match with job requirements mentioned in LC on date same as PD.

and nyc8300, I-485 can be filed only when PD is current.
 

Desi3933 - No thats not right. The following is a response by Rajiv Khanna as per thr FAQ on his website here as for PD transfer after I-140 approval.I am sure this would stand true unless there is a change in law.



CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.

If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
 
UN had commented on this with the original memo from USCIS. Although what u state here is the same as the draft, it seems companies have a different take on this. One of the things about cancelling an approved I-140 (heard from a lawyer) is that the company has to pay for that cancellation to the USCIS.
The other question is what about the extended H-1 for 3 years. Assuming current employer cancels the I-140 does the extended H-1B gets cancelled too?



BrainDrain said:
Desi3933 - No thats not right. The following is a response by Rajiv Khanna as per thr FAQ on his website here as for PD transfer after I-140 approval.I am sure this would stand true unless there is a change in law.



CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.

If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
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USCIS at the time of I-485 adjudication looks at the whole immigration file.

How was the labor filed? How was the I-140 approved? Was the alien getting paid 100% Prevailing wage? Was the person out of status? How was the PD established, it is at this point that they can see if the original I-140 was revoked meaning it is as good as the case never existed (revoke == never intended to file == do not consider it anymore).

Stupid law but that is what it says about PD transfer, if the underlying I-140 was approved and found to be filed in good faith then the PD gets transfered and awarded. GC can be approved and they have a right to cancel GC in the next five years if they want to...that might never occur unless the alien was caught in some serious trouble by Police or FBI maybe...

Now a person who is adjudicating your case could make mistakes either way. If the law supports you and the underlying case is still active then you are ok.

BTW I have used my earlier PD into my new case. The old case still shows as approved on USCIS website. My new I-140 was approved after three years of earlier approval. I guess the old case was never touched after its approval.
 
nyc8300 said:
UN had commented on this with the original memo from USCIS.
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Yes. Based on what UN has described about the statutory revisions to the law, I would not feel comfortable stating that the PD is portable if the I-140 gets withdrawn and the alien is not eligible for AC21 portability. Until USCIS or BIA makes a definitive decision, it certainly doesn't hurt to make the claim that the PD is portable, but I wouldn't count on it.

One of the things about cancelling an approved I-140 (heard from a lawyer) is that the company has to pay for that cancellation to the USCIS.
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I have no idea where this attorney got that idea. It never costs anything to withdraw a petition; one just doesn't get the filing fees back.

The other question is what about the extended H-1 for 3 years. Assuming current employer cancels the I-140 does the extended H-1B gets cancelled too?
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Unless USCIS cancels it in writing I would say no; and I have never yeard of any 7th year Hs being canceled based on the loss of the underying I-140.
 
nj_skm said:
If your new employer does not transfer your old PD over then your current employer can use that PD for someone else and there's little you can do to stop it.
You haven't answered the all-important question: which country are you from? This will determine the worth of your Dec 2005 PD.
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Yes, I am from India. Though I hold good good relationship with my Employer he is based in East coast. Being small company most of the billing rates are eaten up by preferred vendors. He did my Labor and I-140 very fast so that I stick with him. He understands very well that I could get better opportunity anytime. If I join the client which is full time fortune 500 Company, though my manager is willing to cooperate in GC process but being big Corp I think he also has his own limitation I won't be able to push him too much as You know big corps take their own times in labor filing etc may be 6-12 months easily.

As far as tranfering the whole proces is concern I am not sure how it works because my employer and client are located in diff states.

BTW I heared that PERM can only be filed if you are currently employed not for future employment I am not sure how much is that true?
 
Hi, I am also almost on the same situation. I am on the sixth year of H1B, If I change my employer and start GC process , can I get my 3 years extension on H1B during the transfer? I have my 140 approved and have a copy of it too.

Thanks for your time and help!
 
working with same client after GC

I have been working in the company around 4 yrs. I got my Gc 8 months back. Still I work with gc sponsored company. But I am not getting good amount. I have one more layer to work with final client. This company willing to pay me that amount ( what ever they are paying to my prest GC company). I found this job on my own. Now present GC employer says you can't work with the same client for one year. How Do I get out from this situation. Pl advice me. thanks in advance..
Thanks
 
ganga9 said:
I have been working in the company around 4 yrs. I got my Gc 8 months back. Still I work with gc sponsored company. But I am not getting good amount. I have one more layer to work with final client. This company willing to pay me that amount ( what ever they are paying to my prest GC company). I found this job on my own. Now present GC employer says you can't work with the same client for one year. How Do I get out from this situation. Pl advice me. thanks in advance..
Thanks
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You mean working directly with the client or with the middle man?
 
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