Porting PD --I140 denied Urgent help please

[radhagd]

Hi everyone,

I have approved EB3 I140 with pd OCt 2002. -- Company A (curently working)
Labour approved under Eb2 with PD Nov 2006 -----Company B
Filed I140 Premium with request to port PD. -----got denied from Nebrasaka


One of the cause for denial is Failed to prove Ability to PAY from OCt 2002 (Eb3 PD) . Does the company B who sponsored EB2 needs to prove its ability to pay from the porting PD date?

Did some one who successfully ported PD has experienced this problem.
Does Porting PD has all these restriction? Any advice is appreciated

Radha

 

[josamdee]

Porting PD is a process that would happn after the 2nd 140 approval. So porting the Older PD to the new I140 would happen only if the new I140 is approvable.

 

[radhagd]

Porting PD is a process that would happn after the 2nd 140 approval. So porting the Older PD to the new I140 would happen only if the new I140 is approvable.

Thanks Josamdee for your reply. So do you think reapply I140 again and
once it got approved, then request for PD is better option for me now.
please give ur opinion.

 

[josamdee]

Thanks Josamdee for your reply. So do you think reapply I140 again and
once it got approved, then request for PD is better option for me now.
please give ur opinion.

You might want to see the detailed reasons for denial. Check with your attorney on how to address the ability to Pay issue. Without addressing that reapplying for I140 will also not be helpful.

I am trying to stress the fact that Porting PD has nothing to do with Denial.

 

[radhagd]

You might want to see the detailed reasons for denial. Check with your attorney on how to address the ability to Pay issue. Without addressing that reapplying for I140 will also not be helpful.

I am trying to stress the fact that Porting PD has nothing to do with Denial.

Company already proved from EB2 LC date ie Nov 2006 but problem is since we are requesting porting PD they are expecting company to prove from oct 2002. So the denial is definitly becuase of porting PD.

 

[gc_retrogress]

I have heard of a similar case by UN. I think the new company attorney should reply back with the letter stating that new Company is only responsible to show Ability to Pay from the day when PERM was filed.

They need not show Ability to Pay from 2002 or whichever PD you are trying to Port. They cannot do that.

UN specified similar example and it was approved once they replied back to the case.

Maybe new Company cannot show Ability to Pay from the day they filed PERM.

Ability to Pay does not have any links with PD porting.

 

[radhagd]

Maybe new Company cannot show Ability to Pay from the day they filed PERM.

New COmpany LC date is Nov 2006, Following is exact wording from the
Denial letter.

"Becuase the petitioner will be able to use OCtober 24,2002 as the
priority date,the petitioner must establish that it had the ability to pay
62,000 anunually starting october 24,2002 and continuing".

My lawyer is out of country until Jan 15th. In the mean time I want
some advice from you guys what would be best option.
Re file I140 or Appeal/MTR . If MTR how long will it take for making
decision?

Thanks
radha

 

[hopeofgc]

Maybe new Company cannot show Ability to Pay from the day they filed PERM.

New COmpany LC date is Nov 2006, Following is exact wording from the
Denial letter.

"Becuase the petitioner will be able to use OCtober 24,2002 as the
priority date,the petitioner must establish that it had the ability to pay
62,000 anunually starting october 24,2002 and continuing".

My lawyer is out of country until Jan 15th. In the mean time I want
some advice from you guys what would be best option.
Re file I140 or Appeal/MTR . If MTR how long will it take for making
decision?

Thanks
radha

Looks like you applied I-140 for eb2 and also requested for porting PD as well. I guess USCIS changed the PD to Oct 02 for new I-140 eb2 and now they asking for Ability to Pay since Oct 02.

 

[hopeofgc]

Porting PD is a process that would happn after the 2nd 140 approval. So porting the Older PD to the new I140 would happen only if the new I140 is approvable.

samjoe, I have a similar question.

1) company A applied EB 3 labor with Apr 03. I-140 approved and I-485 pending since june 04.

2) from company A, if i file PERM now with eb2 of Feb 07, then once the PERM approved......can i apply for I-140 again?

When we do need to do the porting of PD? What would be my PD then?
Apr 03 EB2?

 

[radhagd]

Looks like you applied I-140 for eb2 and also requested for porting PD as well. I guess USCIS changed the PD to Oct 02 for new I-140 eb2 and now they asking for Ability to Pay since Oct 02.

Yes I applied for Eb2 with request to port PD oct 2002(My EB3 PD from Company A). What I am trying to say is if we port PD from EB3 from Company A, why should Company B prove its ability to pay from oct 2002, when its Eb2 PD date is Nov 2006. In this case what if Company B started in 2004? I think NSC made a mistake or they don't know what they talking.

 

[LaborSeekar]

Question for you.

Hello radhagd,

Can I ask you currently on what year of H1B are you working? Are you still in your 6 yrs H1B limit OR are you on 7th year H1B?
I'm trying to do the same thing. My EB3 labor I-140 are approved. Can't file I-1485. I'm into my 7th year of H1B. Now my client company lawyer says I can't transfer H1B. I thought I can transfer H1B, start a new EB2 labor, I-140 and port old PD to new. Looks like that is not possible and I have to stick with my company until I complete 180 days after filing I-485. My PD is Apr 03. That means another 3 years wait time. I'm pissed off now.

 

[goes]

Hi everyone,

I have approved EB3 I140 with pd OCt 2002. -- Company A (curently working)
Labour approved under Eb2 with PD Nov 2006 -----Company B
Filed I140 Premium with request to port PD. -----got denied from Nebrasaka


One of the cause for denial is Failed to prove Ability to PAY from OCt 2002 (Eb3 PD) . Does the company B who sponsored EB2 needs to prove its ability to pay from the porting PD date?

Did some one who successfully ported PD has experienced this problem.
Does Porting PD has all these restriction? Any advice is appreciated

Radha

I did PP 140 EB2 and retained my EB3 PD successfully. It does not make sense to ask B to provide the Ability to Pay from your old PD date simply because B might not exist at that time.

My guess is that you never work with B and it raises the red flag.

 

[LaborSeekar]

Question for you.

Hello radhagd, goes

Can I ask you currently on what year of H1B are you working? Are you still in your 6 yrs H1B limit OR are you on 7th year H1B?
I'm trying to do the same thing. My EB3 labor I-140 are approved. Can't file I-1485. I'm into my 7th year of H1B. Now my client company lawyer says I can't transfer H1B. I thought I can transfer H1B, start a new EB2 labor, I-140 and port old PD to new. Looks like that is not possible and I have to stick with my company until I complete 180 days after filing I-485. My PD is Apr 03. That means another 3 years wait time. I'm pissed off now.

 

[raviparikh]

Question for Goes

I did PP 140 EB2 and retained my EB3 PD successfully. It does not make sense to ask B to provide the Ability to Pay from your old PD date simply because B might not exist at that time.

My guess is that you never work with B and it raises the red flag.

Hi Goes,
I am also trying to do the same thing.
I just want to ask you, Have you file your PERM labor and second I140 from the same employer or from different employer.

Because i have EB3 labor and I140 approved with the priority date of Nov 2002. but EB3 dates are moving very slow so it will take long time to reach my date but EB2 priority date is Jan 03 so i want to file second PERM labor and at the time of second i140 want to port old priority date.
And my current company to ready to do it, if it is doable.

Pls let me know this thing can be done by same employer too or has to different employer.?

Thanks a lot.

 

[radhagd]

Hello radhagd,

Can I ask you currently on what year of H1B are you working? Are you still in your 6 yrs H1B limit OR are you on 7th year H1B?
I'm trying to do the same thing. My EB3 labor I-140 are approved. Can't file I-1485. I'm into my 7th year of H1B. Now my client company lawyer says I can't transfer H1B. I thought I can transfer H1B, start a new EB2 labor, I-140 and port old PD to new. Looks like that is not possible and I have to stick with my company until I complete 180 days after filing I-485. My PD is Apr 03. That means another 3 years wait time. I'm pissed off now.

I am still working with my old company who did EB3 labour and I got 3 year
H1B extention based on approved EB3 140. My H1b is valid until Dec 2008.
I think in your case your lawyer is wrong You are right. You can transfer your H1b based on your approved EB3 I140. You can file new EB2 and port Eb3 PD with new company

 

[goes]

Hi Goes,
I am also trying to do the same thing.
I just want to ask you, Have you file your PERM labor and second I140 from the same employer or from different employer.

Because i have EB3 labor and I140 approved with the priority date of Nov 2002. but EB3 dates are moving very slow so it will take long time to reach my date but EB2 priority date is Jan 03 so i want to file second PERM labor and at the time of second i140 want to port old priority date.
And my current company to ready to do it, if it is doable.

Pls let me know this thing can be done by same employer too or has to different employer.?

Thanks a lot.

I got EB3 LC/140 cleared in Company A. After that, I joined my current company B, filed EB2 Perm/PP 140. Prepare to file 485 very soon.
From my understanding, changing eb3 to eb2 in the same employer is hard, will get RFE.

 

[goes]

Hello radhagd, goes

Can I ask you currently on what year of H1B are you working? Are you still in your 6 yrs H1B limit OR are you on 7th year H1B?
I'm trying to do the same thing. My EB3 labor I-140 are approved. Can't file I-1485. I'm into my 7th year of H1B. Now my client company lawyer says I can't transfer H1B. I thought I can transfer H1B, start a new EB2 labor, I-140 and port old PD to new. Looks like that is not possible and I have to stick with my company until I complete 180 days after filing I-485. My PD is Apr 03. That means another 3 years wait time. I'm pissed off now.

You can transfer H1b. With your approved EB3 140, you will get a new 3 year h1b in your new company no matter which h1b year you are in. I did the same thing and I was in the 5th year h1b when I did the transfer.

 

[LaborSeekar]

Thanks

Hi Goes,

Thanks for the reply.
May be it was possible for you since you were in 5th year H1B and the extension beyond 6 yrs was thru another company. The reason I'm stressing is, I'm actually trying to trasfer my H1 to another company if possible. But the immigration lawyer is saying thats not possible since I'm in the 7th year H1B. I already have a 3 year extension from my H1B company. Now if I transfer all I need is H1B transfer for the remaining period of already approved 3 yr extension. I'm arguing with my lawyer its possible...but my lawyer says its not. My manager also asking lawyer to explore all the options of transfer. But she was saying not possible. Can you tell me how your lawyer applied for ur 7th year..with what proofs, approvals?

 

[indian_gc_ocean]

LaborSeeker,
try your question at the conference ---
Jan 11, 2007 beginning at 2:00 PM and ending 3:00 PM, Eastern Standard time.

 

[hopeofgc]

Laborseeker, your lawyer is a knucklehead.

You can go ahead and transfer. However, you need the 140 approval notice or copy of labor to allow you to transfer to next employer once you are past six years.

If you don't give 140 approval notice or labor when you transfer; uscis will see that you are past your six years; even if you have an I-94 card that is currently valid beyond six years. They will ask for proof of how you are eligible to go beyond six years. The 140 approval notice or labor will get it approved.

You can then go through perm with new company.

I have done it soo many times and it is really simple from immigratoin law/regulation point of view (it., it is not gray area doing this).

UN, i would like to know if porting PD can be applicable to me as well.

1) company A applied EB 3 sub-labor with Apr 03 with future employment. Joined the company A immediately after I-140 approved and my I-485 pending since june 04.

2) now from company A, if i file PERM now with eb2 of Feb 07, then once the PERM approved......can i apply for I-140 eb 2 again? Later, once the I-140 approved, i can send the letter to USCIS for porting PD to Apr 03 eb2 for pending I-485, correct?
Not sure if filing PERM and I-140 through company A would trigger any RFE? Is this some kinda tricky situation?

Please reply.

Thanks.