I 140 Approved, used substituted labor and trying to switch companies...

U

unluckygcguy

Registered Users (C)
Dear Friends,

I went through the forums and saw many posts related to the subject but none of them are relevant to my scenario...

So here I go:

I first filed labor in a company, ditched that company and joined another company that gave me an approved labor.

Using that labor, I140 approved several months back but unable to file I485 bcos of retro.

Now my client makes me a good offer...

A friend contacted (paid) Attorney Sheela Murthy for her advice and she said that even if the previous company revokes the I140, the priority date on the I140 is ours to keep and since the actual labor petition does not really show up in the 485 or subsequent filings, (it belongs to the company), it does not matter if the labor on which the I140 is approved actually is filed for me.

All I need to do is to refile the GC with the new company (PERM + I140)

I wanted to confirm if I will be safe in trying to switch over to the new company (ie, not loose my precious priority date)

Thanks in advance for your advice.
 
Do processing centers matter in this regard?

And also, one thing I forget to add is:

My current GC is filed from Vermont and if I switch, the new company will file from another place other than Vermont.

Would this complicate my case?

Thanks again and Merry Christmas to all!!!!!
 
unluckygcguy said:
Dear Friends,

I went through the forums and saw many posts related to the subject but none of them are relevant to my scenario...

So here I go:

I first filed labor in a company, ditched that company and joined another company that gave me an approved labor.

Using that labor, I140 approved several months back but unable to file I485 bcos of retro.

Now my client makes me a good offer...

A friend contacted (paid) Attorney Sheela Murthy for her advice and she said that even if the previous company revokes the I140, the priority date on the I140 is ours to keep and since the actual labor petition does not really show up in the 485 or subsequent filings, (it belongs to the company), it does not matter if the labor on which the I140 is approved actually is filed for me.

All I need to do is to refile the GC with the new company (PERM + I140)

I wanted to confirm if I will be safe in trying to switch over to the new company (ie, not loose my precious priority date)

Thanks in advance for your advice.
Click to expand...

It is the grey area, nobody knows for sure. By the law, since original employer revoked I-140, you carries nothing. I would not be so sure based on the words of Sheela Murthy only. I think attorney may try to use USCIS memo wich was release dated 09/23/05, where it says: 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 futureForm I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred .

I am not sure if that memo can be useed as powerful argument or not to replace the law.

Anyway good luck
 
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Couple more questions...

sfmars,

Thanks for answering my question.

My employer is desi. So, I highly doubt that they would revoke I140. However they may financially gain by providing the substituted labor to another person.
Here are some more questions in this regard:

1) Does the employer need to revoke an approved I140 to allow the labor to be substituted for another person? -- If the answer to this is YES, then I believe that my employer will revoke. If the answer to this is NO, I am guessing that they will not revoke and simply substitute the labor for another person.

2) Is the statement true --> "Labor does not matter at the stage of I485 filing" -- This is the conclusion that my friend has come away with after phone discussions with Attorney Murthy.

3) If employer does decide to revoke I140, how long (days) does it take to come in effect? -- Someone told me that it does cost some money to the employer (filing fees, lawyer fees) and it will take 3 months. But I would like to confirm that.

4) When you state that it is a grey area, to which side do the authorities normally lean towards in interpreting? Towards the law or the memos clarifying certain situations? Does my lawyer need to specially mention this in any filings or would they automatically look up these obscure memos?

5) Is there any cases you readers know of, in which during the filing of I-140, upon its approval, USCIS has refused to transfer the priority date from the previous I-140 application? If so, are there any reasons why they might do that? I wanted to cover myself in this regard.

And as always, thanks a lot!
 
UN's replies have made me reconsider switching companies at this stage.
If there is no grey area like he states, I would not want to risk it...

However, I personally know a guy ( and his company -- a big reputable one ) who is doing this switch...hmmm..... Hoping the best for him.

Anyways, I have a question that went unanswered:
Is this statement true? --> The labor does not matter at the time of filing I485?
The reason I ask is that the designation of the 2nd company is "Senior software engineer" which the one on my labor is "Programmer Analyst"

Thanks!!
 
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