Can I retain my priority date across different visas

[theseeker]

Hello !!

To explain my position: I am currently on OPT, and have a H1 approved. My company is in the process of filing Labor Certification for me, and if it goes through I should have a Priority date sometime in August/September. However, I am planning to join a full time MBA program in the coming 2-3 years, which means that I will have to go back to F1 status (in case my GC does not come through before that). In that case, will I be able to retain this Priority date for any future GC filings ?

Thanks in anticipation ..

[mrdelhiite]

Originally Posted by theseeker

Hello !!

To explain my position: I am currently on OPT, and have a H1 approved. My company is in the process of filing Labor Certification for me, and if it goes through I should have a Priority date sometime in August/September. However, I am planning to join a full time MBA program in the coming 2-3 years, which means that I will have to go back to F1 status (in case my GC does not come through before that). In that case, will I be able to retain this Priority date for any future GC filings ?

Thanks in anticipation ..

As far as i know yes. Lets look t it logically. When people change there jobs there is a gap between new labor and old one. So gap will not be a problem. Status change has nothing to do with PD or 485. As long as you were legal
-M

[desi3933]

Originally Posted by theseeker

Hello !!

To explain my position: I am currently on OPT, and have a H1 approved. My company is in the process of filing Labor Certification for me, and if it goes through I should have a Priority date sometime in August/September. However, I am planning to join a full time MBA program in the coming 2-3 years, which means that I will have to go back to F1 status (in case my GC does not come through before that). In that case, will I be able to retain this Priority date for any future GC filings ?

Thanks in anticipation ..

Yes. PD can be retained.

However, extending or Change of Status to F1 will be difficult once immigrant petition (I-140) is filed for you. F1 Status does not allow immigrant intent.


_________________________
Not a legal advice.

[walking_dude]

I think your PD won't be affected as LC is for a future job. But you could face issues with F1 as you need to show "Non-Immigrant Intent" to get F1.

Since a GC labor has been filed for you, it would be hard (impossible?) to prove that you intend to return back. AFAIK H1 is the only "dual-intent" visa. There was a proposal in CIR to have a F4 visa (for students doing STEM masters) with dual-intent. Now it's old water under bridge

[desi3933]

Originally Posted by walking_dude

I think your PD won't be affected as LC is for a future job. But you could face issues with F1 as you need to show "Non-Immigrant Intent" to get F1.

Since a GC labor has been filed for you, it would be hard (impossible?) to prove that you intend to return back. AFAIK H1 is the only "dual-intent" visa. There was a proposal in CIR to have a F4 visa (for students doing STEM masters) with dual-intent. Now it's old water under bridge

Incorrect on many counts.

First, just filing labor does not make difficult to CoS to F1. It is I-140 and I-485.

H1 is NOT the only dual intent status. How about H4, L1, L2, O?

Please do some research before posting info.


_________________________
Not a legal advice.

[GCchakravyuh]

'After I140 APPROVAL', a priority date is portable. Ofcourse you will have to redo the labor, I140 again. Then for his new case, you can apply 485 using your old priority date.. (this is one of the very few good things i have learnt so far in the immigration rules.)

[kumar1]

Desi.....what waking dude said is right, he did not include all type of visas with dual intent. What are you so harsh? We are helping each other here, if you feel someone has put less than perfect answer then feel free to jump in correct him. I have a problem when you write something like ---"Please do some research before posting info. ". Do not brag your immigration knowledge here please.

[desi3933]

Originally Posted by kumar1

Desi.....what waking dude said is right, he did not include all type of visas with dual intent. What are you so harsh? We are helping each other here, if you feel someone has put less than perfect answer then feel free to jump in correct him. I have a problem when you write something like ---"Please do some research before posting info. ". Do not brag your immigration knowledge here please.

Please look at my other posts and then decide if I am bragging?


Have a good day!

[a_yaja]

Originally Posted by theseeker

Hello !!

To explain my position: I am currently on OPT, and have a H1 approved. My company is in the process of filing Labor Certification for me, and if it goes through I should have a Priority date sometime in August/September. However, I am planning to join a full time MBA program in the coming 2-3 years, which means that I will have to go back to F1 status (in case my GC does not come through before that). In that case, will I be able to retain this Priority date for any future GC filings ?

Thanks in anticipation ..

Please be aware of the following:
- as per current regulations, priority date can only be ported if your I-140 is approved. just having an approve labor does not allow for porting of priority date
- after I-140 approval if you change employer you must go through the whole Labor + I-140 process once again (althought you will be able to retain prior priority date)
- your F1 COS application will be denied if you have applied for I-140 (does not require that it be approved because the mere fact of applying for I-140 shows immigrant intent)
- should you apply for a F1 visa in a consulate abroad, your F1 visa will be denied because an I-140 petition was filed on your behalf
- just having approved labor is not considered as having immigrant intent
- the only non-immigrant employment based visas that allow for dual intent is H1B and L1

[theseeker]

Thanks for the information. So, does that mean that I would not be able to pursue any full time academic programmes after my I-140 has been approved ?

[Legal]

Originally Posted by a_yaja

Please be aware of the following:
- as per current regulations, priority date can only be ported if your I-140 is approved. just having an approve labor does not allow for porting of priority date
- after I-140 approval if you change employer you must go through the whole Labor + I-140 process once again (althought you will be able to retain prior priority date)
- your F1 COS application will be denied if you have applied for I-140 (does not require that it be approved because the mere fact of applying for I-140 shows immigrant intent)
- should you apply for a F1 visa in a consulate abroad, your F1 visa will be denied because an I-140 petition was filed on your behalf
- just having approved labor is not considered as having immigrant intent
- the only non-immigrant employment based visas that allow for dual intent is H1B and L1

As some one posted here many of us have become pretty good immigration lawyers!

O-1 is also non-immig employment visa, but it is unlikley he will qualify. F-1 doesn't permit immigrant intent...You may change status here but if you are from India and if you ever have to apply for visa in India......forget it!

[delhirocks]

Good post Yaja, informative...btw I love your signature

Originally Posted by a_yaja

Please be aware of the following:
- as per current regulations, priority date can only be ported if your I-140 is approved. just having an approve labor does not allow for porting of priority date
- after I-140 approval if you change employer you must go through the whole Labor + I-140 process once again (althought you will be able to retain prior priority date)
- your F1 COS application will be denied if you have applied for I-140 (does not require that it be approved because the mere fact of applying for I-140 shows immigrant intent)
- should you apply for a F1 visa in a consulate abroad, your F1 visa will be denied because an I-140 petition was filed on your behalf
- just having approved labor is not considered as having immigrant intent
- the only non-immigrant employment based visas that allow for dual intent is H1B and L1

[theseeker]

As a follow up to this conversation, I am curious if the following can be done.

1. The company files for my Labor Certification (I get a Priority Date).
2. They do not file for I140.
3. I join a full time MBA program (switch from H1B to F1)

In this way, I should be able to retain the Priority Date, and at the same time be eligible for switching to F1 from H1B. Can anyone please let me know ?

Thanks.

[a_yaja]

Originally Posted by theseeker

As a follow up to this conversation, I am curious if the following can be done.

1. The company files for my Labor Certification (I get a Priority Date).
2. They do not file for I140.
3. I join a full time MBA program (switch from H1B to F1)

In this way, I should be able to retain the Priority Date, and at the same time be eligible for switching to F1 from H1B. Can anyone please let me know ?

Thanks.

As long as you have not filed for I-140 you are OK to switch to F1. Not knowing other details of you or your nationality, in my opinion, you must really consider the following:

1. If you leave the US and go to your home country and apply for F1 visa, there is a good posibility that the F1 will be rejected (not sure of your home country but in India, which is my home country, when I applied for F1 many of the people in the Chennai consulate who applied for F1 and had more than 2 yrs of employment experience got their F1 visa rejected as they showed "immigration intent")

2. If you apply for labor certification and if your labor is approved - you have 6 months (or 180 days - not sure which) to apply for I-140 after labor approval. If you do not apply for I-140 within the prescribed time limit, your LC will "expire". If the LC expires, you will have to start all over again and you will not be able to "port" your priority date.

3. One option would be for you to apply for F1 visa in your home country when your labor is pending and really, really hope that your F1 visa is granted. After that, you can enter the country and file for I-140. As far as I know, once you are already on F1 status, there is nothing to prevent you from applying for I-140 or I-485 later on.

4. If you are able to file your I-485 later on, then you are in what I call "no man's land". From what I heard at the International Student's Office at the University I went to, once you have filed I-485, you no longer need to have a valid I-20 to study full time. However, I think (not sure again - but to the best of my knowledge) one of the requirements of I-485EB is that you have to have a full time job when you are adjusting status. The case @ the university was for the spouse of a friend of mine. She was pursuing a Master's degree and she wanted to get her I-20 extended as she wanted to join the Ph. D. program and that was when the ISO told her that she did not require an I-20. But since her I-485 was derivied from my friend's EB, she did not have to worry about having a full time job.

If you are really serious about your MBA, I would sugest you talk to the advisor at the International Student's Office or a really good lawyer. The advisor's advise is free so there is no harm in listening to him first. Then you can decide if you want to still talk to a lawyer.

Good luck on your MBA.

[plassey]

Kumar,
I am with Desi here. Walking dude SHOULD NOT have used sentences like "AFAIK H1 is the only "dual-intent" visa". It is misleading. He is probably doing this to increase his number of posts to be called a senior member.
If YOU DONT HAVE sufficient knowledge. Use the words like PROBABLY. This indicates the readers that they need to do some home work themselves

Originally Posted by kumar1

Desi.....what waking dude said is right, he did not include all type of visas with dual intent. What are you so harsh? We are helping each other here, if you feel someone has put less than perfect answer then feel free to jump in correct him. I have a problem when you write something like ---"Please do some research before posting info. ". Do not brag your immigration knowledge here please.

Originally Posted by walking_dude

I think your PD won't be affected as LC is for a future job. But you could face issues with F1 as you need to show "Non-Immigrant Intent" to get F1.

Since a GC labor has been filed for you, it would be hard (impossible?) to prove that you intend to return back. AFAIK H1 is the only "dual-intent" visa. There was a proposal in CIR to have a F4 visa (for students doing STEM masters) with dual-intent. Now it's old water under bridge