Retrogression and changing employers

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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 also have similar problem , but was not aware of this option. Good to know that I can use Eb3 pd for Eb2 485 approval.
 
Do not take this route unless you are 100% sure your employer will not back stab you

It is only do-able if your current company chooses not to revoke your I-140. Also, in order to apply for a new EB2 for the same company, you need to show that job is totally different from the other job you had applied before. It raises lots of questions and unless your company is a very big company with lots of openings, you might get in trouble. However, that is not the real problem. :mad:

The real problem is the revocation of 140 which might happen any time if your current employer decides to do that once you leave the company/choose to apply for a different labor cert. You have to be in very good terms with your current employer to prevent these two from happenning. And if revocation of 140 happens, you will be royally screwed and be at the end of the EB2 line. Question is, are you ready to take the risk?

My previous company immediately reused my labor once I left the company - what is there to prevent your current employer from doing so?

Bottomline, you are trying to beat the system, but the system itself is broken and heavily in favor of the employer, not you. So, do this if you want/can, but I will be very skeptical and concerned till I file my 485 through the new LC.
 
mrajatish said:
It is only do-able if your current company chooses not to revoke your I-140. Also, in order to apply for a new EB2 for the same company, you need to show that job is totally different from the other job you had applied before. It raises lots of questions and unless your company is a very big company with lots of openings, you might get in trouble. However, that is not the real problem. :mad:

The real problem is the revocation of 140 which might happen any time if your current employer decides to do that once you leave the company/choose to apply for a different labor cert. You have to be in very good terms with your current employer to prevent these two from happenning. And if revocation of 140 happens, you will be royally screwed and be at the end of the EB2 line. Question is, are you ready to take the risk?

My previous company immediately reused my labor once I left the company - what is there to prevent your current employer from doing so?

Bottomline, you are trying to beat the system, but the system itself is broken and heavily in favor of the employer, not you. So, do this if you want/can, but I will be very skeptical and concerned till I file my 485 through the new LC.
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Ok, I understand but what if you were qualified for Eb2 but still your lawyer applied in Eb3 , and now you want to reapply in Eb2 for same position as the Eb3 petition.
 
As far as I know, you cannot do that - it will be difficult for your lawyer to prove that the same job that required a bachelors now requires a masters. It is very risky and chances of denial is quite high.
 
CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?
No. The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case now and obtain a 2005 or later priority date.

Source:www.usimmigrationlawblog.com/employ...-44-visa-retrogression-questions-answers.html
 
Read this

An I-140 petition was previously approved on my behalf, but I have since changed employers and am in the process of applying for permanent residency with my new employer.

So long as an I-140 petition was previously approved on your behalf, and not revoked, you are permitted to "recapture" the priority date from the previous petition in the subsequent I-140 filing. The recapture needs to be requested upon the filing of the new I-140 petition. It does not matter whether the old petition was in the same preference category or not. Also, if you are the beneficiary of multiple approved I-140 petitions, you are entitled to use the earliest priority date.

There are several situations in which a previously approved I-140 petition would be revoked and could not be used for recapture.

For example, if the employer that filed the previous I-140 petition wishes to use the labor certification upon which the I-140 was based to substitute in another alien, then the I-140 petition must be revoked. Furthermore, an employer can revoke an I-140 petition approved on an alien's behalf for any reason, by simply writing a letter to USCIS requesting revocation. Many employers will do this if the alien leaves its employment on bad terms. In addition, if the previous I-140 was used to support a consular processing application which was terminated under INA 203(g) for failure to apply for the immigrant visa within one year of notification of its availability, then as part of the termination process the underlying I-140 petition would be revoked. A petition revoked for any reason cannot support recapture of an old priority date.

The regulatory provision allowing for recapture, found at 8 CFR 204.5(e), applies only to employment-based first, second, and third preference visas and not to I-360 petitions filed on behalf of religious workers.


Source: http://www.usvisahelp.com/nw_vol4_iss14.html
 
mrajatish said:
An I-140 petition was previously approved on my behalf, but I have since changed employers and am in the process of applying for permanent residency with my new employer.

So long as an I-140 petition was previously approved on your behalf, and not revoked, you are permitted to "recapture" the priority date from the previous petition in the subsequent I-140 filing. The recapture needs to be requested upon the filing of the new I-140 petition. It does not matter whether the old petition was in the same preference category or not. Also, if you are the beneficiary of multiple approved I-140 petitions, you are entitled to use the earliest priority date.

There are several situations in which a previously approved I-140 petition would be revoked and could not be used for recapture.

For example, if the employer that filed the previous I-140 petition wishes to use the labor certification upon which the I-140 was based to substitute in another alien, then the I-140 petition must be revoked. Furthermore, an employer can revoke an I-140 petition approved on an alien's behalf for any reason, by simply writing a letter to USCIS requesting revocation. Many employers will do this if the alien leaves its employment on bad terms. In addition, if the previous I-140 was used to support a consular processing application which was terminated under INA 203(g) for failure to apply for the immigrant visa within one year of notification of its availability, then as part of the termination process the underlying I-140 petition would be revoked. A petition revoked for any reason cannot support recapture of an old priority date.

The regulatory provision allowing for recapture, found at 8 CFR 204.5(e), applies only to employment-based first, second, and third preference visas and not to I-360 petitions filed on behalf of religious workers.


Source: http://www.usvisahelp.com/nw_vol4_iss14.html
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mjrajatish, as per my lawyer the position required > 5 yrs experience and my case was applied in Eb3 to avoid readvertising costs since they already advertised for Eb3 filing for another person.
Now for the same position if she applies with the correct required experience of > 5 years, she can apply in Eb2 right , although it is for the same position and same company .
 
Well, first of all, you cannot change from Eb3 to Eb2 at the 140 stage.

Now, let us say you have an approved labor cert. and an approved 140, and now you apply for a new LC from the same company. You can do that with old prioroty date of LC if
1. Your employer is supportive and does not withdraw your aproved 140.
2. You find a suitable job in your company that
A. Does not require the experience you gained through the current job.
B. Requires either BS + 5 yrs or MS.

If both of these are true, and 1 can never happen till you can apply for 485, go for it. For most of us, that will probably not be the case as it will be difficult to find an employer who will not withdraw 140 petition when the underlying incumbent refiles LC.
 
One can retain the priority date even if the previous employer revokes the I-140 petition, the only exception being if the approved I-140 was obtained fraudulently then it cannot be retained.

So guys don't worry.
 
Do not be sure.

So US Visa Help is wrong? Also, I spoke with my lawyer and she said that two beneficiaries cannot use same priority date. So what a company can do
1. Revoke 140 claiming they will use labor sub.
2. Labor sub is used by another person who then gets the pri date, not you.

140 approval belongs to employer. It is only in 485, after 180 days of pending aplication, that you are free to leave your employer and never worry. That is why we need the right to apply for 485 without priority dates current.

I think people should talk to a couple of respectable attorneys (e.g., Rajeev Khanna) before taking this drastic step. If you get screwed in not keeping your pri. date, you are back at the end of the queue.
 
iaminq said:
One can retain the priority date even if the previous employer revokes the I-140 petition, the only exception being if the approved I-140 was obtained fraudulently then it cannot be retained.

So guys don't worry.
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iaminq, can you please mention your source for this statement. Thank you for your input.
 
Bunty2772 said:
I spoke to a lawyer at the Murthy firm that he confirmed that the only time I cannot reuse the I-140 PD is if the employer proves that the I-140 was obtained fraudulently, just like iaminq pointed out.
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Maybe he was under the assumption that 485 had been pending 180 days or so. This has been discussed so many times in the form. General consensus was if only 140 was approved, 485 not filed yet, then you need help from the employer to carry over the PD. If he revokes, you are back to end of the Q.
 
arouncoumar said:
Maybe he was under the assumption that 485 had been pending 180 days or so. This has been discussed so many times in the form. General consensus was if only 140 was approved, 485 not filed yet, then you need help from the employer to carry over the PD. If he revokes, you are back to end of the Q.
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Thank you aroun.What I think you are referring to are the provisions for portability under the AC21 clause. But I'am not sure if carrying over the PD from an older approved I-140 is in any way related to the clause in 8 CFR 204.5(e). But I may be wrong. Can anyone else pipe in?
 
mrajatish said:
So US Visa Help is wrong? Also, I spoke with my lawyer and she said that two beneficiaries cannot use same priority date. So what a company can do
1. Revoke 140 claiming they will use labor sub.
2. Labor sub is used by another person who then gets the pri date, not you.

140 approval belongs to employer. It is only in 485, after 180 days of pending aplication, that you are free to leave your employer and never worry. That is why we need the right to apply for 485 without priority dates current.

I think people should talk to a couple of respectable attorneys (e.g., Rajeev Khanna) before taking this drastic step. If you get screwed in not keeping your pri. date, you are back at the end of the queue.
Click to expand...

mrajatish, I fould something by Sheela Murthy on this topic. Take a look here:

http://www.murthy.com/chatlogs/ch040306_P.html

"Chat User : Can one use the EB3 I-140 (approved) PD to file the EB2 case with a different employer?

Attorney Murthy : Yes, that is certainly possible and is done fairly often. That earlier PD can be transferred to any employment-based (EB) filing later on, as long as the earlier I-140 petition is not revoked for fraud or revoked by the employer. Even after revocation of the I-140 petition, it is often possible to use that earlier PD, as long as a request is made in writing by quoting the regulation with the later-filed I-140 petition, filed by the new employer."

But you're right. It sounds fairly risky to me.
 
I have a question.

I have a question in this regard. Does this rule apply even if your Labor finally (some day in this life time) gets approved via the backlog reduction center. Or is it required to be approved via the new and improved PERM process. Please guys, don't mind my carcasm, but I am in this exact same boat. And my labor is held up in the Philly backlog reduction center. Got the 45 day letter, and never heard back from anyone. And then, the company is shaking up and people around me are loosing jobs left and right. Very scarry situation.

Thank you very much for any thoughts.
-NK..
 
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