Negating the affects of retrogression

B

Bunty2772

Registered Users (C)
I need help from all the gurus here to help make a decision.

I have an EB-3 case that has I-140 approved with a priority date of Oct, 2002. As you may have noticed in the recent bulletin, the EB-2 dates have moved passed my PD while the EB-3 dates are still stuck at early 2001. My second term of H1B expires in April, 2007. My current lawyer suggested that I file a new PERM case under EB-2 since I now have a senior position in this company and I got a Master's degree from the U.S. before I joined this job. He then wants me to use my current PD of Oct, 2002 for the new EB-2 case during the I-140 stage. That way, once the I-140 gets approved, I can immediately file for the I-485 under EB-2, provided that the EB-2 dates for India do not retrogress again. One big advantage of doing this would be that I could stay with this company and in 6 months, apply for a 3-year H1B extension based on my current case if the dates for EB-3 are still retrogressed. Is this scenario possible? Is this just my lawyer trying to make more money off of me?

My other option is to move to a new job and file under EB-2 PERM. In this case, I would still be able to recapture the priority date from my current EB-3 case. But I'am not sure about the 3-year H1B extension using my current case. Will I still be eligible? Or will just get a 1-year H1B extension? Also, I may not even need an H1B extension since I may be able to file for I-485 right after my I-140 approval and get an EAD. Is this a correct assumption?

Gurus, please suggest the best course of action for my case. Thank you all for your time.
 
I am in the same situation.

EB-3
PD Dec 2002
Labor and I-140 cleared
Cannot file for I-485 due to retrogression.
 
OK, I think I have seen this question in other threads in this forum...
if you want to switch employers, make sure you can bring over your Priority Date to your new employer (not sure how this is done but it's possible). Unfortunately LC and I-140 are employer-specific, so you have to re-file your GC all the way back from Labor. Things get really complicated... especially if you are in Year 6 of your H1-B visa now.

I found the following info from murthy.com website:
http://www.murthy.com/news/UDh121st.html
Read the paragraph on "H1-B Extension Only Allowed after LC Pending for Over A Year"...
Apparently what this paragraph implies is that if you jump to a new employer, and have to re-file GC, then you would need to go back to your country of origin for one year before you can return on a new H1-B visa. That means you are NOT qualified for the one-year increments while waiting for GC process to complete.

So, my advice is, if you are already close to finishing your 6 years of H1-B, you must be careful before making any changes to your GC situation. Take care everyone!
 
This strategy might be a problem if you want to stay with the same employer. I do not think you can change EB3 to EB2 with the same employer.
Careful with this lawyer if that is what he told you. Get a 2nd opinion if needed. At this stage it is better not to get desperate and lose you foothold on the petition. That is my view. There is likely to be some resolution to this mess in say 1 year, and who knows your EB2 petition might take that long to make it to this stage.
 
Thank you for your replies ufo and posmd.

ufo,
Priority date can be recaptured on any new case as long as you have an I-140 approved. This can be done on a new case that is not in any way similar to the old case. And I already know that I will have to restart my labor and everything at a new job. I was hoping to start off with PERM. That way, it may still take 6 months before I have an EB-2 case with I-140 approved. But I'am definitely worried about using my old case at the older company to get an H1B extension at the new company while I wait for the EB-2 to be approved. This is why I need the gurus here to tell me if this is even possible.

posmd,
Employment based petition is filed for job in the future. So I do not understand why a company may not be able to file a petition for another job with advanced requirement in the EB-2 category. Can anyone else care to comment?
 
Friends,

I just found this article at murthy.com which talks about the newer 2005 Yates memo. In this article, it clearly says that the Yates memo confirms H1B extensions at a new employer using the labor or I-140 filed at the previous employer. Take a look at the section titled "H1B Extension Allowed with Different Employer".

http://www.murthy.com/news/n_yath1b.html
 
That paragraph sure is interesting...
there is another paragraph further below "H1-B Porting and Bridging" which describes the situation if you are planning on changing employers in between H1-B expiration and re-newal.... could be a possible minefield.

Bunty2772 said:
Friends,

I just found this article at murthy.com which talks about the newer 2005 Yates memo. In this article, it clearly says that the Yates memo confirms H1B extensions at a new employer using the labor or I-140 filed at the previous employer. Take a look at the section titled "H1B Extension Allowed with Different Employer".

http://www.murthy.com/news/n_yath1b.html
Click to expand...
 
I am in a similar situation.
Priority Date : Nov 2002 in EB3 category
140 approved
Waiting to file 485
And want to change employers..

I want to change employers and start my green card process again and want to re-capture my earlier priority date.Does my previous employer has to do anything in this ? My understanding is that the this has to happen with the consent of the current employer.If he doesnt agree to the fact that he cannot support my labor priority date, there is no point in changing employers especially if you are in your final year of your H1B.Is this a correct assumption ?

Thanks in advance guys.
 
cool_desi,
Can you please not post your questions and take over my thread? I'am looking for answers just as you are and I started a new thread for my question. I suggest you do the same. Thank you.
 
cool_desi_gc said:
I am in a similar situation.
Priority Date : Nov 2002 in EB3 category
140 approved
Waiting to file 485
And want to change employers..

I want to change employers and start my green card process again and want to re-capture my earlier priority date.Does my previous employer has to do anything in this ? My understanding is that the this has to happen with the consent of the current employer.If he doesnt agree to the fact that he cannot support my labor priority date, there is no point in changing employers especially if you are in your final year of your H1B.Is this a correct assumption ?

Thanks in advance guys.
Click to expand...

According to my lawyer, your old employer cannot stop you from recapturing your priority date. The only way he can try and cancel your old petition is if he can prove that there was fraud involved in your petition. Therefore, you do not need his support to recapture priority date. All you need are copies of your labor approval and I-140 approval. And your PD recapture should be applied for during the application process of a new I-140 at the new employer.
 
ufo2002 said:
That paragraph sure is interesting...
there is another paragraph further below "H1-B Porting and Bridging" which describes the situation if you are planning on changing employers in between H1-B expiration and re-newal.... could be a possible minefield.
Click to expand...

ufo,

The H1B Porting and Bridging section has nothing to do with your GC process. It is referring only to H1B transfers. And if I change jobs now, this won't hurt me a bit. Thank you.
 
You must log in or register to reply here.
Top