I-140 portability before filing I-485

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gc_psraj

Registered Users (C)
I have a couple of questions,

My employer (abc) who does a corp-to-corp through anotrher firm (xyz) who has placed me in a project, keeps complaining that they are not getting paid in time by firm xyz. I know xyz has been lagging in payments for a 3-4 months, but they do pay after a follow up, but my direct employer being a small firm gets panicked, and the latest is they warn me that they may not pay me in time too if they dont get paid from xyz. They may skip paying me for a few months. I am in a long term project with a very stable client, and don't want to loose it. My I-140 was approved(EB3) and waiting to file I-485 under WW category, PD May 2002.

1) Can my employer refuse to pay me, even though I put in full hours, but the employer hasnt got paid from xyz? I have been with them for 5 years.

2) Is there any way I can use AC-21 to transfer my I-140 to another employer without loosing PD, and file I-485.
 
Sorry, I have no idea about 1) but for 2) it should be a straight labor law question and nothing to do with your immigrant/visa status. The answer may well vary from state to state, but in general I'd imagine that if you are a full-time employee (as you must be for H-1B) your employer (abc) cannot refuse to pay you if you did your work as requested at a customer site.

However I assume you are more worried that if you make too much fuss they'll fire you, cancel your I-140 and transfer your LC to someone else, which gets back to question 1), for which you'll need someone more experienced to help you.
 
Nothing to worry.

While your employer is expected to pay you on schedule, he can delay by upto 30-45 days. You must understand that he is only postponing the payment and not completely running away from it. If he fails to pay you even after receving payment from vendor, then you have a point.

Having been with the employer for 5 years I wont quit for this reason especially at this stage in yout GC.

As for your question on using AC-21, that is not possible in your scenario. AC21 is applicable only for cases that have 485 pending for 6+ months. You dont fall in that category
 
gc_psraj said:
I have a couple of questions,

My employer (abc) ......

1) Can my employer refuse to pay me, even though I put in full hours, but the employer hasnt got paid from xyz? I have been with them for 5 years.


2) Is there any way I can use AC-21 to transfer my I-140 to another employer without loosing PD, and file I-485.
Click to expand...

For 1 -> your employer cannot refuse to pay you, but they can delay your pay by a few days for sure. You can complain about it to relevant authorities and get all your payments

For 2 -> Yes, you can port your PD since you have an approved I-140. The process for this would be i) File a new labor under PERM ii) Once the new labor is approved, file I-140 and attach your old approved 1-140 with it. This would ensure that your old PD continues.

Considering that you are ROW and your priority date has a very high probability of becoming current with the next bulletin, I think it would be more preferable not to do either of (1) or (2), file your 485 asap and after six months switch to another company and claim all the pending balances.

I'm not a lawyer - the above is based on what I've read in these forums and other forums.
 
Dilbert_Cal said:
For 1 -> your employer cannot refuse to pay you, but they can delay your pay by a few days for sure. You can complain about it to relevant authorities and get all your payments

For 2 -> Yes, you can port your PD since you have an approved I-140. The process for this would be i) File a new labor under PERM ii) Once the new labor is approved, file I-140 and attach your old approved 1-140 with it. This would ensure that your old PD continues.

Considering that you are ROW and your priority date has a very high probability of becoming current with the next bulletin, I think it would be more preferable not to do either of (1) or (2), file your 485 asap and after six months switch to another company and claim all the pending balances.

I'm not a lawyer - the above is based on what I've read in these forums and other forums.
Click to expand...
Hi Dilbert
i did not understand how will it help him to port on PERM/140 if he cant port on old labor and approved 140( because in both cases he can't file 485 till current
 
well the question i want to ask is, if one has an approved 140 , but cant file 485 because of retrogression , and its been 6 months after 140 approval , can one change jobs
 
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