Question on EB3-> EB2

how to retain old pd??

hi nonogc and all,

i am a bit confused by the section below. does it mean that if i apply for a new lc under eb2 this and if it is approved i can keep my 2001 pd? if so, how exactly will i be able to do that if the eb2 lc is for a different position and different salary? also, can someone really file 2 different lcs from the same company?

here is my situation...when i applied for lc in 2001 i only had a masters, so it was put under eb3. after a long painful wait of 4 years, it was finally approved not long ago. while waiting during those 4 years, i obtained 2 masters. so what i am now trying to figure out is:

1- can i file another lc under eb2 with the same company but with a high position and salary (that i do actually have)?
2-if yes, how can i retain my old pd with the new application?
3-will i loose my current lc? or will i still be able to use it and apply for 485 if by miracle my pd becomes current the new lc is approved through perm? in other words can both applications proceed in parallel?
4-will the uscis revoke my lc if they find that i am now in a different position and getting a higher salary so both different from what was in my lc application years ago? i heard that the position and salary is not supposed to change...

please help me guys...thank you all in advance!!!



nonogc said:
8 CFR 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."
Click to expand...
 
GcStrat,

Thx! I was reading the Yates memos in murthy.com website, and different memos seem to imply different intepretations of the AC21 portability. One article in 2005 seems to indicate that those with approved I140 but not filed I485 will still be permitted to change employers provided the original I140 wasn't revoked by the previous employer (and this in turn allows you to bring your previous PD over). However, it's just strange that we need to make sure our previous employer doesn't revoke the old I140 considering that we need to re-file LCA and new I140 with a new employer.... I know the old PD is preferred to a new PD, but still.... confusing rules.

-----------------------------
gcstrat said:
Some thoughts
UFO2002: This is what comes to my mind.

Since you have an approved I-140 (and I presume approved LC as well), you "own" the priority date. Also, approved I-140 makes you eligible for 3-year extension for your 7th year instead of 1-year extension.

So, from your current employer, get the new H-1 (3-year extension) and then switch using H-1 transfer and restart the process. You still retain the old priority date. (BTW, obtain a copy from employer/lawyer of your APPROVED labor and I-140 before you switch - documents always helps).

I am not sure if AC21 provision apply if you have not filed I-485. Consult a good lawyer for how AC21 can help and also for above.
Click to expand...
 
You are right ufo2002.That seems to be a gray area in this whole issue.Did we know of any cases where a 140 is revoked.And what if the employer substitutes your LC with someone else.Thats a possibility.What do you say ?
 
And that is why DOL wants to get rid of labor substitution... there are companies just abusing the approved LCs whenever employees leave and new ones come in. It's not only a possibility, it has already happened! I do not know of anyone who got their I140 revoked when changing jobs cause everyone is just staying on with their own employers hoping this retro-crap-sion is going to go away.

cool_desi_gc said:
You are right ufo2002.That seems to be a gray area in this whole issue.Did we know of any cases where a 140 is revoked.And what if the employer substitutes your LC with someone else.Thats a possibility.What do you say ?
Click to expand...
 
if you read enough posts here, you'll see good amount of people asking what to do after the former employee revoked either their i140 or substitute their labor to someone else.
 
EB3 to EB2 Process

ufo2002 said:
Hi GcStrat,

How about my situation here: I-140 approved but I-485 not filed due to EB-3 World retrogression... and I am in my final year of the 6-yr H1-B visa. Would it make any sense to jump to another employer for GC processing? According to what I intepreted from AC21 provisions, if I do that, I am no longer eligible for the 1-yr extensions and I have to return to my country of origin?
So it would be bad for me right?
Also, would staying with my current employer but convert to EB-2 also voids my qualification for 1-yr extensions?

Thanks in advance.
Click to expand...

GcStrat,
Your oponion about the following situation.
I am under "All Chargeability Areas Except Those Listed"
I have approved labor under EB3 (priority date of August 05)
I have approved I-140
My Sixth year on my H1B starts July 2006.

I have the opportunity to switch job and the new company has promised to start the process in the EB2 category. Being from "All Chargeability Areas Except Those Listed" there is no Back Log for EB2 process.

Is it feasiable to switch job at this stage and start the process under EB2 process. Will I be jeopradizing my current situation.
Kindly advice
Thanks and Regards
SayedRizvi
 
Here's one I read. (It might be this particular lawyer's interpretation.)
Source: http://www.immigration-law.com/Advanced Q&A.html

Q-20 (11-18-05): I am an Indian Programmer-Analyst. My previous employer filed a labor certification application for me in October 2000, which was certified. It was EB2 RIR. My previous employer then filed a stand-alone I-140 petition which was approved. I opted for consular processing and got the interview date from American Consulate in Chennai. However, I was laid off by my previous employer and could not attend the interview at Chennai consulate. My previous employer then went out of business eight months after I was laid off. I have the complete copy of this labor certification application and the approval letter. I also have the complete copy of the I-140 application and the approval letter. Now my present employer filed my labor certification in March 2003, EB2 RIR, as Senior Programmer Analyst and it is in backlog center. I received the 45 day letter two months ago. I am expecting my labor approval anytime. Could I use my previous priority date of October 2000 when I file a new I-140 with my current employer? A-20: The question involves retention of priority date. Under the rule of retention of priority date, once the priority date is retained by the force of the approval of I-140 petition, the priority date can be used in another petition which is filed by the same employer or another employer for same classification or different classification. Accordingly in current situation of visa retrogression, retention of priroty date is extremely important. Unfortunately the retained priority date is lost when the original petition is revoked other than for the purpose of substitution of alien beneficiary. Under the immigration regulation, the approved petitions are revoked automacally in certain situations or by notice of revocation by the USCIS for fraud, misrepresentation, etc. The automatic revocation includes termination of the business of the employer. Accordingly, your old priority date is lost when your former employer went out of business since the petition was automatically revoked without any action by the agency. The reality is, though, that the USCIS would have no knowledge of the termination of the original petitioning employer's business and without doubt there must have some instances where the alien beneficiary filed I-140 petition and I-485 application using the revoked petition and obtained approval of I-485 based on the old priority date. However, once it is detected in the future, the agency may be able to revoke the green card approval for fraud.
 
Last edited by a moderator:
Disclaimer: I am not a lawyer

Guys and Gals

I appreciate you asking me questions. But remember I am not a lawyer nor do I pretend to be one in any media, including this. For your GC needs, it is always better to consult a GOOD lawyer. I have done the same, when I thought I needed legal help. :cool:

So, anything I write here, use at YOUR OWN RISK. :)

SayedRizvi:

You definitely have an incentive to do EB2. Question is why didn't your current employer file under EB2?

That said, thing you need to consider the most is whether you can get your 7th year extension if you switch now. It is April 12 today and you have 2.5 months to July and then one year for you end of 6 years. How confident you are the new company will file (i.e. received by DOL) your PERM before 366 days for your H-1 expiry?

Consult a good lawyer for this as you definitely have a very positive incentive to do Eb2. A good lawyer's fees are worth the investment.

ufo2002:

You question has been answered by avi101.


Regards
GCStrat :)
 
GCStrat
The reason for not filing the EB2 process was as follows
1) I did not have the 5 years US experience necessary at that time.
2) My salary did not meet the minimum requirement to file EB2 Salary < 95 K

now my question is if this new company files under EB2 in the 6th year and I am able to obtain my labor certificate within the sixth year. Will I be able to file for seven year extention.

Also if I am able to obtain my labor certificate within the sixth year will I be able to file concurrently the I485 and I140 and once I485 and I140 is filed do I qualify to file seventh year extention.

Thanks for your answers
Regards
Sayed Rizvi
 
Consult a lawyer

SayedRizvi

My understanding is that your PD i.e. PERM date should be greater than 366, to get a 7th year extension (provided I-140 is not denied, if PERM has been approved). And if your PD is current, you can file concurrently I-140 and I-485.

Again Consult a good lawyer. All the best :)

Regards
GCStrat :)
======================
Disclaimer: I am not a lawyer. Anything I write here, use it at your own risk.
 
Just my comments:

Yeah, the scenario below is extreme, not only did the employee get laid off but the former employer went kaput. CIS will just automatically assume it's a fraudulent filing of Labor/I140 because of that. That's why I am just not very convinced myself of PD portability to a new employer because the definition of how/when/why a revoke event will occur is up to CIS discretion. The Employee seems to have no legal avenue to challenge CIS.

avi101 said:
Here's one I read. (It might be this particular lawyer's interpretation.)
Source: http://www.immigration-law.com/Advanced Q&A.html
Click to expand...
 
EB3-Eb2 old priority date lost

Hi Guys,

Today my lawyer gave me the bad news that I have lost my priority date and my new priority date is being established based on EB2 PERM filing. I had an LC which got approved in old process in EB3. MY lawyer told me it would be an easy thing to file in EB2 in PERM and still maintain old priority date. But today he informed me that he received a letter saying that my old priority date has been lost and my PERM has been approved with a new priority date. I asked him if there is anything like appealing the decision of DOL. He said there is nothing that can be done. He told me according to PERM, they do tell you that there is a risk involved maintaning old priority date and it is not straigtforward case. Also still maintaining old priority is very strictly case by case basis and he told me that we agreed on taking that risk.

I dont know what to do. My old priority date was in Jan 2003. Please guys help me out here. Any suggestions or anyone with similar case please respond.

Thanks
 
do you have an approved I-140?

shahub

Scary !!!!

Do you have an approved I-140 or was this EB3 to Eb2 done before that?
Was EB2 a new position or same old one?

Regards
GCstrat :)
 
Man!!!

DOL clearly mentioned that you will loose the priority date if you apply for new labor from same employer, there is some policy one employer-one employee- one labor, not sure how exactly it works...

How stupid your lawyer is how come he suggested to file another labor...

What you can do now, hope for faster movement of EB2, EB3 is more worst and it will take long time to reach ur old PD also..

-SR
EB3 (PD-11/2002)
140 approved.
 
sr2610 said:
DOL clearly mentioned that you will loose the priority date if you apply for new labor from same employer.
Click to expand...
If they CLEARLY mentioned, I appreciate you for the pointer.
 
I am sorry to hear this shahub.
Please post your lawyer's name in all the immigration forums u are in so that he is pwned. Either he's incompetent or he just had you in for the extra filing fee$. Personally, I am surprised it's possible to re-file with the same employer for an EB2, I was told by my friends that it's not possible if you already have an earlier EB3 filed. Not unless you got a job position change.

shahub said:
Hi Guys,

Today my lawyer gave me the bad news that I have lost my priority date and my new priority date is being established based on EB2 PERM filing. I had an LC which got approved in old process in EB3. MY lawyer told me it would be an easy thing to file in EB2 in PERM and still maintain old priority date. But today he informed me that he received a letter saying that my old priority date has been lost and my PERM has been approved with a new priority date. I asked him if there is anything like appealing the decision of DOL. He said there is nothing that can be done. He told me according to PERM, they do tell you that there is a risk involved maintaning old priority date and it is not straigtforward case. Also still maintaining old priority is very strictly case by case basis and he told me that we agreed on taking that risk.

I dont know what to do. My old priority date was in Jan 2003. Please guys help me out here. Any suggestions or anyone with similar case please respond.

Thanks
Click to expand...
 
marlon2006 said:
EB3 world, pd=04/2002. I-140 approved, I-485 pending since 02/05. Title=systems administrator. 50% of masters degree completed. 7 years experience in the US alone.

Who feasible and likely would be reapplying using EB2 ? If I do so, how long the whole process should take ?
Click to expand...

marlong2006,

If your I-140 is approved then go ahead and apply for EB-2 PERM LC. You are allowed to take your priority date with you since your I-140 is already approved. Since your PD is 04/2002, there is very little chance of EB-2 getting retrogressed back to 04/2002.

Also, the pending legislation in Congress is very likely to eliminate retrogression for Rest of the World.
 
You can refer some Yates memo date on /23/05. It states how to retain priority date. First of all, you need to have a EB3 140 approved. If you don't have this, you are done.

Second, if you have EB3 140 approved, I don't see any problem you
retain your EB3 priority date: file EB2 140 with EB2 perm, and attach
the copy of your EB3 140. Also, in EB2 140 somewhere, you state you
have previous 140 approved. Then you will keep you old priority date
when USCIS approve your EB2 140,and they will put your old priority
date in you new eb2 140 approval notice.
Of course DOL don't care your priority date, it's USCIS's responisible
to determine you priority date in you 140 bases on your situation.

The 9/23/05 memo explain all the above clearly, I don't know why
people still worry about it so much? I believe as long as EB3
cut off date move like a nail, more and more people will consider
change to EB2.

I am tring to do this right now, my boss is OK with my request,
but since my company is pretty big, it has some policy, so
I am not sure if I can get through the corporate.




shahub said:
Hi Guys,

Today my lawyer gave me the bad news that I have lost my priority date and my new priority date is being established based on EB2 PERM filing. I had an LC which got approved in old process in EB3. MY lawyer told me it would be an easy thing to file in EB2 in PERM and still maintain old priority date. But today he informed me that he received a letter saying that my old priority date has been lost and my PERM has been approved with a new priority date. I asked him if there is anything like appealing the decision of DOL. He said there is nothing that can be done. He told me according to PERM, they do tell you that there is a risk involved maintaning old priority date and it is not straigtforward case. Also still maintaining old priority is very strictly case by case basis and he told me that we agreed on taking that risk.

I dont know what to do. My old priority date was in Jan 2003. Please guys help me out here. Any suggestions or anyone with similar case please respond.

Thanks
Click to expand...
 
you have to have the exact case to keep your priority date when you refile through perm. For your case, you have changed from eb3 to eb2.
 
You must log in or register to reply here.
Top