i140 approved and layoff

[gc_process_ouch]

My i140 is approved and waiting for visa date, Now my employer informed me that end of Jan , my job will be terminated.

1) What will happen to my approved i140? Can I take my priorty date with me?
2) My current employer might cancel the GC applied for me. in that case , will my priorty date will be voided too ?


I understand that I will have to apply labor and i140 again but I think I can use proirty date when it comes to visa dates.

 

[sfmars]

Yes, It is yours forever

My i140 is approved and waiting for visa date, Now my employer informed me that end of Jan , my job will be terminated.

1) What will happen to my approved i140? Can I take my priorty date with me?
2) My current employer might cancel the GC applied for me. in that case , will my priorty date will be voided too ?


I understand that I will have to apply labor and i140 again but I think I can use proirty date when it comes to visa dates.

YES you can, See attached USCIS memo from 09/23/2005. It says " 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of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation."

See exact text on the page # 6.

This memo is the law for your case, until there is official (special law describing your case).

I forgot one thing. You need to have copy of the approved I140.

 

[eBhola]

Quick Question:

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of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation[/B].

Quick Question:
What if the employer withdraws the application - to substitute the application for someone else?
Can the beneficiary do AC21 in such cases?

Thanks
eBhola

 

[chanduv23]

Quick Question:
What if the employer withdraws the application - to substitute the application for someone else?
Can the beneficiary do AC21 in such cases?

Thanks
eBhola

The PD is supposedly transferable unless the petition has been rejected or withdrawn if found to be wrong or defective.

Keep copies of ur petition. They must suffice.

 

[desi3933]

Quick Question:
What if the employer withdraws the application - to substitute the application for someone else?
Can the beneficiary do AC21 in such cases?

Thanks
eBhola

Sec. 204.5 (e) (204.5):
(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

 

[sfmars]

Sec. 204.5 (e) (204.5):
(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

That statement just says "Petition Revoked" and nothing more, it does not say under which circumstances the petition is revoked. It can be understood that petition has been revoked by USCIS and not by employer.

The same time memo says "petition has been revoked because of fraud or willful misrepresentation".

I found that some lawyers think the same that only if petition is revoked by USCIS, the PD can not be transfered, otherwise it belongs to beneficiary forever, they refer to that memo (released on September 2005).

Although some people like unitednations (who is not lawyer) think that if employer revokes I140, the beneficiary looses PD, I do not agree with that.

 

[tusharvk]

if the employer can not revoke I140, then the alien can pretty much leave the employer after I140 approval without waiting for I485+180 days.

At the same time the quoted rule mentions that pd can not be transferred to another alien. Where is then the question of labor subs?

That statement just says "Petition Revoked" and nothing more, it does not say under which circumstances the petition is revoked. It can be understood that petition has been revoked by USCIS and not by employer.

The same time memo says "petition has been revoked because of fraud or willful misrepresentation".

I found that some lawyers think the same that only if petition is revoked by USCIS, the PD can not be transfered, otherwise it belongs to beneficiary forever, they refer to that memo (released on September 2005).

Although some people like unitednations (who is not lawyer) think that if employer revokes I140, the beneficiary looses PD, I do not agree with that.

 

[sfmars]

if the employer can not revoke I140, then the alien can pretty much leave the employer after I140 approval without waiting for I485+180 days.

Employer can revoke I140 simply writing letter to USCIS, but beneficiary can retain PD regardless of employer's actions

At the same time the quoted rule mentions that pd can not be transferred to another alien. Where is then the question of labor subs?

There are three cases of Labor Subs:

1. Labor is filed in 2001 and not certified yet, original beneficiary is laid off, new one hired in 2007. The PD for the new one is 2001 in case of substitution.

2. Labor is filed in 2001 and approved but I140 for the old one is not approved yet, original beneficiary is laid off, new one hired in 2007. The PD for the new one is 2001 in case of substitution.

3. Labor is filed in 2001 and approved and I140 for the old one is approved, original beneficiary is laid off, new one hired in 2007, employer revokes I140, does LC substitution and files new I140. The PD for the new one is 2007 in case of substitution - date of I140 filing.

4. In case of I485 was filed and 180 days passed, substitution is not possible.
New LC needs to be filed.

 

[desi3933]

Employer can revoke I140 simply writing letter to USCIS, but beneficiary can retain PD regardless of employer's actions



There are three cases of Labor Subs:

1. Labor is filed in 2001 and not certified yet, original beneficiary is laid off, new one hired in 2007. The PD for the new one is 2001 in case of substitution.

2. Labor is filed in 2001 and approved but I140 for the old one is not approved yet, original beneficiary is laid off, new one hired in 2007. The PD for the new one is 2001 in case of substitution.

3. Labor is filed in 2001 and approved and I140 for the old one is approved, original beneficiary is laid off, new one hired in 2007, employer revokes I140, does LC substitution and files new I140. The PD for the new one is 2007 in case of substitution - date of I140 filing.

Incorrect. PD is 2001 for the new employee

4. In case of I485 was filed and 180 days passed, substitution is not possible.
New LC needs to be filed.

Incorrect. Employer has the right to revoke/withdraw I-140 until I-485 is approved. However, if this case, employee can continue I-485 if AC-21 option is invoked.

 

[desi3933]

That statement just says "Petition Revoked" and nothing more ...

Please read it again. It says petition revoked under sections 204(e) or 205

... it does not say under which circumstances the petition is revoked. It can be understood that petition has been revoked by USCIS and not by employer.

The same time memo says "petition has been revoked because of fraud or willful misrepresentation".

I found that some lawyers think the same that only if petition is revoked by USCIS, the PD can not be transfered, otherwise it belongs to beneficiary forever, they refer to that memo (released on September 2005).

Although some people like unitednations (who is not lawyer) think that if employer revokes I140, the beneficiary looses PD, I do not agree with that.

 

[gc_retrogress]

I-140 revoked

So far I have not come across a case in this portal where PD was not ported because the old employer revoked the case.

SO DESI...whatever the words say....we need to understand the stand of USCIS on this.

Given if the wording is taken as is...they can go back and cancel the applications or remove that PD even at a later stage.

 

[sfmars]

desi3933,

I do not know, may be what you say is true if USCIS takes those laws as a rule but unfortunately even AC21 is not the rule for USCIS yet.

Until it is not 100% rule we have bunch of memos.
When USCIS writes memo they clearly say how they are going to use the law.
That's why I think that any recent memo is the current law for immigration community.

Personally I do not agree with both your previous posts.


Look what I found today on the http://www.immigration-law.com in the breaking news section:

This rule has to be fixed by the AC 21 regulation, which has been delayed by the USCIS for years and years. In order to deal with the confusion in the immigrant community, the USCIS has released various memorandums to offer some answers to these questions with a warning that the interpretation would remain "provisional" and can be changed once the AC 21 regulation is enacted and released. Until such regulation is released, though, the memorandums have given guidances to the immigrants.

 

[desi3933]

Are you aware of any case where PD was ported even after old I-140 was revoked by emp

So far I have not come across a case in this portal where PD was not ported because the old employer revoked the case.

SO DESI...whatever the words say....we need to understand the stand of USCIS on this.

Given if the wording is taken as is...they can go back and cancel the applications or remove that PD even at a later stage.

Let me ask me this question. Are you aware of any case where PD was ported even after old I-140 was revoked by employer (and it must be non-AC21 case)?
_________________
desi3933@gmail.com

 

[gc_retrogress]

Ok we are trying to help some one port pd not unport pd.

Anyway if so many people asked this question, I am sure they must have faced this problem of loosing PD. So far no such case was reported.

Let me ask me this question. Are you aware of any case where PD was ported even after old I-140 was revoked by employer (and it must be non-AC21 case)?
_________________
desi3933@gmail.com