NIW /retrogression/PERM

I

Indianavictim

Registered Users (C)
Need urgent help to make a decesion and move out of current employment.
Never a J-1( current 7th year H1B 6/05-6/06. RIR at Dallas BPC since oct 2002. NIW concurrent 140/485 applied two years ago 11/03 just got approved last month( 5 years clock will start now unfortunately, though I am in HPSA for 3 years 4 months.
I want to change employment because of a offer from surrounding hospital, will pay for immigration and fight no-compete cluase( usually unenforceable in HPSA, against public interest for national interest waiver physician to leave county then to protect employer bussiness interest).
First quesion, moving will cause lose of Oct 2, 2002 PD( not from a restrogressed country so far, lets say file PERM by December 1, 2005 approved in one month and 140 in next few months, Will i be able to swap NIW I 485 to PERM 140 once approved.
Lets say retrogression starts for EB2 worldwide categories, is there any PD based on my NIW 140/485( 11/03).
My understanding is retrogression will affect any one till 485 gets approved, but a filed 485 helps to extend ead/ap indefinetly, is that true?
My 485 will not gets adjudicated in next 5 years, but I guess I can swap it to PERM 140 once its approved according to Perason memo of 2000.
Any advice guys.
Thanks
PS correct me if iam wrong that "if i need 8th year H1B i can extend it based on niw approved 140/pend 485 in a year increment once i loses RIR > 365 pd.
 
> First quesion, moving will cause lose of Oct 2, 2002 PD

Unless your previous employer is willing to keep a job offer open for you and file an i140, this PD is probably toast.

> Will i be able to swap NIW I 485 to PERM 140 once approved.

Pearson memo says yes. NSC says no. NSC however does swaps if cornered.

> Lets say retrogression starts for EB2 worldwide categories, is there
> any PD based on my NIW 140/485( 11/03).

Definitely the approval date of the I140, maybe even the notice date.

> My understanding is retrogression will affect any one till 485
> gets approved, but a filed 485 helps to extend ead/ap indefinetly,
> is that true?

If retrogression kicks in before you file I485 you are out of luck. If you have a pending I485 when retrogression kicks in, it means you can get AP and EAD until it comes through.

> My 485 will not gets adjudicated in next 5 years, but I guess
> I can swap it to PERM 140 once its approved according to
> Perason memo of 2000.

You can swap one approved I140 for another approved I140 while maintaining PD and secondary benefits (EAD/AP). So unless there is something else I am missing the answwer is yes.


Is your new employment in a HPSA, or more specifically in the same service area as your NIW job ?
 
Last edited by a moderator:
to hadron

hi,
I am in a similar situation. I am a pediatrician working in a MUP area . My perm recently got approved. Unfortunately, hard copy is still pending. So, I decided to file NIW 140 , 485 EAD, Ap etc before retrogression.I am in nebraska , So come under NSC. My idea is to apply for labour I 140 once I get the hard copy and when the labour I 140 gets approved, to switch that I 140 for NIW 140 and then I can use portability act and move.
1--Will there be a problem to do that I 140 switch?
2--If I use portability act and leave after labour I 140 approval, Should I move to a HPSA area just in case the NSC did not attach my 485 to labour I 140.?
3--Can we switch approved NIW i140 with pending labour I 140 or both has to be approved to make a switch?
 
> 1--Will there be a problem to do that I 140 switch?

It is my understanding (based on what a USCIS officer at VSC told me in person and based on what my overpaid attorney reported from the AILA liasion meeting at NSC) that BOTH have to be approved. IOW it is NOT possible to substitute a peding I140 with an approved one and vice versa. So, if I am correct, you would have to wait until your NIW I140 is approved as well.

> 2--If I use portability act and leave after labour I 140 approval, Should
> I move to a HPSA area just in case the NSC did not attach my 485 to
> labour I 140.?

I don't think the usual AC21 portability rules apply to NIW cases. Staying in a HPSA and getting a support letter from the respective state would probably be a good idea (the old belts and supsenders concept).

> 3--Can we switch approved NIW i140 with pending labour I 140 or
> both has to be approved to make a switch?

See above.


REMEMBER:
I am not an attorney, and I don't pretend to be one. I just know more about this crap than I ever cared for through my own travails as well as following the odissey of a number of FMG physicians in my extended family.
 
Hardon ,
thanks for detail answer and your precious time. No the second job offer is not HPSA, i have to abondon the just approved NIW 140/485. I did spoke with my overpaid attorney, doenot see any problem( have to complete 5 years in 6 year duration) Hope fully once I ink the new deal in few weeks, will file new H1B/PERM, and if every thing is ok 140 by december 05, I expect USCIS want to reduce processing time by 6 months and I hope will get 140 approve with in 6 month( 6/06). Will try to swap to pending 485 filed date 11/03 by pearson memo if I am lucky.
I am making that move decesion in next few days( infact I am reading the draft contract tonite. I do have good knowledage of immigration bussiness but I guess far less then what u have. Would u be willing to talk to me in person about some technical issues.
I am sending u a private mail with my #, if u would kindly spare some minutes to go over my complicated scienrio.
 
Can you get the new place to file the PERM while you are still working your old job ? Yes, PERM for physicians seems to be pretty straightforward, but I personally would feel better if I had the PERM and an I140 receipt notice in my hand before I made the move.
As a physician you have a couple of months of lead time anyway before you can change jobs. What does your current contract say regarding notice periods ? Are you staying in the same state or do you already have the other states medical license ? Will you need to get onto new insurance carriers ?
 
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