Please help..Lay-off (I_140 approved but waiting for I-485 dates

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ciril99

Registered Users (C)
Guys/Gals,

I have been working as a contractor for the past 6 yrs for an american consulting company and my project is going to be ended by May 31st and I am afraid I might be laid-off by my consulting company.

My green card is in process, I-140 approved but waiting for I-485 dates to become to apply for I-485.

If I get laid-off, what are my options? Would it be possible, i can transfter my H1B and I guess I need to start GC from scratch. Can I transfer H1B with out applying for new GC?

If I apply for new GC, can i carry over my current priority date?


I have completed 6 yrs on H1B and close to 10 yrs on H1B right now.


I appreciate your valuable inputs.

Thanks,
 
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ciril99 said:
Guys/Gals,

I have been working as a contractor for the past 6 yrs for an american consulting company and my project is going to be ended by May 31st and I am afraid I might be laid-off by my consulting company.

My green card is in process, I-140 approved but waiting for I-485 dates to become to apply for I-485.

If I get laid-off, what are my options? Would it be possible, i can transfer my H1B and I guess I need to start GC from scratch. Can I transfer H1B with out applying for new GC?

If I apply for new GC, can i carry over my current priority date?


I appreciate your valuable inputs.

Thanks,
Click to expand...

New employer can apply for 3 year H1-B for you. GC processing is employer's choice and has nothing to do with your H1. GC process has to begin from scratch.

About porting your PD, lot depends on whether current employer revokes I-140 or not. It may not be possible to carry PD if the current I-140 is revoked.
 
This is not true. You can port the priority date on your approved I140 provided you have a copy of the same and that the original case was not fraudulent. It does not matter if the employer revokes the I-140. You may want to check this with a competent attorney.
desi3933 said:
About porting your PD, lot depends on whether current employer revokes I-140 or not. It may not be possible to carry PD if the current I-140 is revoked.
Click to expand...
 
WellWisher007 said:
This is not true. You can port the priority date on your approved I140 provided you have a copy of the same and that the original case was not fraudulent. It does not matter if the employer revokes the I-140. You may want to check this with a competent attorney.
Click to expand...

Thanks all for your inputs, I forogt to mention that I have completed 6 yrs H1B and close to 10 yrs on H1B
 
Quoting UN on this. If I40 is revoked by employer, PD is gone. He did not see a single case where someone's 485 got approved after 140 was revoked or USCIS allowed PD porting on a revoked I140.

ciril99 : Follow the suggestions of desi9333. Make sure you get a copy of approved 140 and an assurance from your current employer to not to revoke 140.


WellWisher007 said:
This is not true. You can port the priority date on your approved I140 provided you have a copy of the same and that the original case was not fraudulent. It does not matter if the employer revokes the I-140. You may want to check this with a competent attorney.
Click to expand...
 
WellWisher007 said:
This is not true. You can port the priority date on your approved I140 provided you have a copy of the same and that the original case was not fraudulent. It does not matter if the employer revokes the I-140. You may want to check this with a competent attorney.
Click to expand...

I am consulting Murthy to ask exactly same question. I am hearing different things from different people. Hopefully attorney will know for sure. Will update the forum later.
 
ciril99 said:
Thanks all for your inputs, I forogt to mention that I have completed 6 yrs H1B and close to 10 yrs on H1B
Click to expand...
it should not matter as long as you have a approved I-140, you should find a new employer and apply for transfer of your H1B....you should get 3 years based on I-140

start looking for a new employer.....u dont have to join them even after you h1 transfer gets approved.....(i hope i am not wrong, others please clarify this??)
 
WellWisher007 said:
This is not true. You can port the priority date on your approved I140 provided you have a copy of the same and that the original case was not fraudulent. It does not matter if the employer revokes the I-140. You may want to check this with a competent attorney.
Click to expand...

Well, let me say it again.

Once I-140 is revoked, PD is gone. Period.
 
desi3933 said:
New employer can apply for 3 year H1-B for you. GC processing is employer's choice and has nothing to do with your H1. GC process has to begin from scratch.

About porting your PD, lot depends on whether current employer revokes I-140 or not. It may not be possible to carry PD if the current I-140 is revoked.
Click to expand...

Correction.

Yes, GC process has to begin from scratch but he can use his old priority date as he has approved 140.
 
Chase4GC said:
I think that is true when I-485 is not applied. Right?
Click to expand...

Partly correct.

This applies when I-485 has not been applied
or
I-485 pending for less than 180 calendar days.

In short, when AC-21 is not applicable then revoking of I-140 does not confer Priority Date to the beneficiary.
 
bigbang2001 said:
Quoting UN on this. If I40 is revoked by employer, PD is gone. He did not see a single case where someone's 485 got approved after 140 was revoked or USCIS allowed PD porting on a revoked I140.

ciril99 : Follow the suggestions of desi9333. Make sure you get a copy of approved 140 and an assurance from your current employer to not to revoke 140.
Click to expand...

What UN said was as follow if I remember correctly.

The law and memo are not consistent over the revoked I140.

You can use CIS memo which I thought was published in late 2005 to argue as memo said unless I-140 was fraudulent, you can keep PD after I140 approval. However, law did not say that. UN quoted the whole sentence of law on this regard, and I need to look it up on CIS's website, but the point was since law did not refer to either fraudulent or simply being revoked, if CIS brings the law up to argue with you, you are in trouble.
The memo is just a guidance and does not have legal value, though law is the highest authority.

Probably some of you guys who argued with UN on this issue can trace your past post.
 
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PBECIsKillingMe said:
Correction.

Yes, GC process has to begin from scratch but he can use his old priority date as he has approved 140.
Click to expand...

What correction? That is what I am saying.
FYI - Using old PD depends on lot of factors. Having old approved I-140 is just meeting only one of the requirements.

Here is my post again:
New employer can apply for 3 year H1-B for you. GC processing is employer's choice and has nothing to do with your H1. GC process has to begin from scratch.

About porting your PD, lot depends on whether current employer revokes I-140 or not. It may not be possible to carry PD if the current I-140 is revoked.
 
PBECIsKillingMe said:
Can you provide me reference article on this. I am not 100% agreed with you.
Click to expand...

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.

Related Thread:
http://www.immigrationportal.com/showthread.php?p=1595601#post1595601
 
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hmmm

techy2468 said:
it should not matter as long as you have a approved I-140, you should find a new employer and apply for transfer of your H1B....you should get 3 years based on I-140

start looking for a new employer.....u dont have to join them even after you h1 transfer gets approved.....(i hope i am not wrong, others please clarify this??)
Click to expand...

I do not think that is correct. As far I know, once the employer who filed the original GC revokes approved labor/140 before AC-21 can be enacted (ie. 6mos after 485 is filed), you will have to start over.
 
Aytes Memo.

There was a memo from Aytes which gave guidance on this. Check the attached doc. Again, this is just for your information when you talk to a competent attorney.

4. Chapter 22.2 (b) (5) (A) revised to read:
...
A. Determining the Priority Date.
... alien beneficiary retains his or her priority date as established by the filing of the labor
certification for any future Form I-140 peitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation.
...
 
More recent (september 2006) Aytes Memo.

Kinda long.. but pretty much says the same thing.
 
Surely the old priority date won't be maintained if the original I-140 is revoked before the next I-140 is applied for? (assuming I-485 has not been filed)
 
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