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pd_recapturing
10-02-2006, 01:00 PM
I am planning to leave my current employer and move to a different one. I have got my I-140 approved under EB3 category from the current employer. While moving to the new employer, I want to retain my priority dates. I would like to know what kind of documents are needed in order to do the same. I am presuming that a copy of I-140 approval notice would be needed from current employer that I am sure that my current employer would not give me. So what is my chance in this case? is there any way, I can get it from USCIS? Has anybody got it successfully from other than the employer? Are there any other documents , I need from my current employer. Please suggest.

pd_recapturing
10-03-2006, 11:23 AM
Can spmebody provide his/her opinion on this post?

baburob2
10-03-2006, 11:32 AM
Basically to retain the PD you should have the copy of the I-140 approved and you could retain the PD. Having said that, different lawyers have different interpretations when you switch jobs and retain the PD. Basicallly some lawyers say you could retain the PD even if your old employer uses it for another person after revoking yours, while others say you can't retain PD if your old employer revokes your I-140. However if your old employer willn't revoke your I-140 then you could definetely port your PD with your new employer. If you employer is hesitant to give, you could try asking him other ways if possible for H1B stamping etc.

masti_Gai
10-03-2006, 11:33 AM
A copy of ur approved 140 is more than enough i feel.
And hope that ur current employer isn't pissed off so that he wouldn't care to revoke ur 140 else ur case wouldn't stand.

rock945
10-03-2006, 11:34 AM
you might also need a copy of your approved Labour application.
I am not sure if you can get the documents directly from the UCIS becuase the documents belong to your employer and not you.
you can try through Freedom of Information Act(foia.com). but it might take a while to get the documents.

gc_in_30_yrs
10-03-2006, 12:38 PM
you might also need a copy of your approved Labour application.
I am not sure if you can get the documents directly from the UCIS becuase the documents belong to your employer and not you.
you can try through Freedom of Information Act(foia.com). but it might take a while to get the documents.

All that is required is only I-140 Approval Notice. Labor Cert is not required.

pd_recapturing
10-06-2006, 02:03 PM
Still do not know as to how to get a copy of I-140 approval notice from my employer. Can somebody suggest a way to ger it?

up_guy
10-06-2006, 02:16 PM
Ask him.

Very Good reply :)

pappu
10-06-2006, 02:29 PM
Ask him.
:D :D :D :D :D :D

masti_Gai
10-06-2006, 02:55 PM
tell him u need a copy of ur 140 he might mail u a scanned copy of the same. Then switch the company using this 140.
i know its a dumb idea.:rolleyes:
but u have to take a chance.;)
if ur employer is pissed off he might revoke ur 140 :eek: :eek:

brb2
10-06-2006, 04:32 PM
Tell him you are travelling to Canada (or Timbuktoo) for the holiday period, and you need to have this document with you so you don't have problems on the way back in:)

qualified_trash
10-06-2006, 04:36 PM
this is also assuming that you have filed for your 485. you cannot apply portability with:

approved labor + approved I140

you can only move to another employer with:

approved labor + approved I140 + pending 485

GCwaitforever
10-06-2006, 04:49 PM
If he is going to start with new PERM. new I-140, he can port the old PD based on old I-140.

qualified_trash
10-06-2006, 08:42 PM
If he is going to start with new PERM. new I-140, he can port the old PD based on old I-140.
I disagree based on the following:

Accordingly, guidance in the June 19, 2001, memorandum provides that the labor
certification or approval of a Form I-140 employment-based (EB) immigrant petition shall
remain valid when an alien changes jobs, if:
(a) A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180
days or more; and
(b) The new job is in the same or similar occupational classification as the job
for which the certification or approval was initially made.


note the "and" between (a) and (b) and note point (a) which states that a pending 485 is necessary for an alien to change jobs

this is from the USCIS website

http://www.uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

dilbert_cal
10-06-2006, 09:16 PM
I disagree based on the following:


note the "and" between (a) and (b) and note point (a) which states that a pending 485 is necessary for an alien to change jobs

....

You can port your PD based on your approved 140 even if your 485 has not been filed. I think someone had posted a FAQ from Rajeev Khanna's site which specifically said its allowed. Also, the same is available on Murthy's site too. And Finally, I've talked to three lawyers in the last one year and each one of them agreed that this can be done.

qualified_trash
10-06-2006, 09:47 PM
From Murthy.com

" AC21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC21 portability are available to any otherwise qualified individual, even if there is not an available visa number for his/her case."

if the PD becomes current and someone files the 485 and then retrogresses, they are the ones that can use this

"As long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC21"

from the link http://www.murthy.com/news/n_porret.html

sbabunle
10-07-2006, 04:59 PM
Basically to retain the PD you should have the copy of the I-140 approved and you could retain the PD. Having said that, different lawyers have different interpretations when you switch jobs and retain the PD. Basicallly some lawyers say you could retain the PD even if your old employer uses it for another person after revoking yours, while others say you can't retain PD if your old employer revokes your I-140. However if your old employer willn't revoke your I-140 then you could definetely port your PD with your new employer. If you employer is hesitant to give, you could try asking him other ways if possible for H1B stamping etc.



If a person has a copy of 140 approval, can he/she port the PD even
if the employer revoke it?

thanks
babu

dilbert_cal
10-08-2006, 12:48 PM
From Murthy.com

" AC21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC21 portability are available to any otherwise qualified individual, even if there is not an available visa number for his/her case."

if the PD becomes current and someone files the 485 and then retrogresses, they are the ones that can use this

"As long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC21"

from the link http://www.murthy.com/news/n_porret.html

We are talking two different things here. You are saying about AC-21. The OP is asking about retaining PD. The way you can retain your PD after I-140 approval is :-

You file a new labor with the new employer - once it is approved - you need to file a new I-140 application and attach the old approved application with it - this would ensure that your PD will become the PD from the old case.

Difference with AC21 is - in the case of AC21, you just switch jobs and your current GC process continues - you do not have to file a new labor,140 etc.

dilbert_cal
10-08-2006, 12:51 PM
If a person has a copy of 140 approval, can he/she port the PD even
if the employer revoke it?

thanks
babu


Different lawyers have different opinion about it. Some believe you lose the PD once the 140 is revoked but others believe the PD is yours for life even if the underlying 140 is revoked later on.

There are some risks in changing jobs based on 140 and depending on your personal situation, you got to decide whether the risk is worthy or not.

One reason that all lawyers agree on is you can lose your PD if the 140 is revoked for fraud. But then thats a completely different ball game.

qualified_trash
10-09-2006, 10:21 AM
We are talking two different things here. You are saying about AC-21. The OP is asking about retaining PD. The way you can retain your PD after I-140 approval is :-

You file a new labor with the new employer - once it is approved - you need to file a new I-140 application and attach the old approved application with it - this would ensure that your PD will become the PD from the old case.

Difference with AC21 is - in the case of AC21, you just switch jobs and your current GC process continues - you do not have to file a new labor,140 etc.
thanks dilbert_cal!!

qplearn
10-09-2006, 11:45 AM
We are talking two different things here. You are saying about AC-21. The OP is asking about retaining PD. The way you can retain your PD after I-140 approval is :-

You file a new labor with the new employer - once it is approved - you need to file a new I-140 application and attach the old approved application with it - this would ensure that your PD will become the PD from the old case.

Difference with AC21 is - in the case of AC21, you just switch jobs and your current GC process continues - you do not have to file a new labor,140 etc.

Dilbert_cal:

Does this mean that with AC-21, I can just switch jobs (provided it is similar), and that my PD etc remains the same and that I don't have to do my labor and I-140 again? My I-485 has been filed for more than a year now (my 140 is also approved), and while I would like to change my job, I don't want to do the whole thing again.

Your response will be HIGHLY appreciated, bcuz you seem to know this stuff well.

qplearn

qualified_trash
10-09-2006, 12:00 PM
Dilbert_cal:

Does this mean that with AC-21, I can just switch jobs (provided it is similar), and that my PD etc remains the same and that I don't have to do my labor and I-140 again? My I-485 has been filed for more than a year now (my 140 is also approved), and while I would like to change my job, I don't want to do the whole thing again.

Your response will be HIGHLY appreciated, bcuz you seem to know this stuff well.

qplearn
yes!!

with AC21, you do not have to do the whole thing again......... that I am sure of!!

qplearn
10-09-2006, 12:04 PM
yes!!

with AC21, you do not have to do the whole thing again......... that I am sure of!!

Thanks for responding!!! Kisses (free beer if you are a guy):) :) :)

I can actually move!!!!

nk2006
10-09-2006, 04:16 PM
I understood that if your employer revokes I-140 you have to start the process all over again with a new emplyer, even with AC21. i thought only if the employer does not revoke can you keep your PD and continue from I-485 stage with the new employer. someone, please confirm if this is wrong/correct

I think answer is - Wrong.

My understanding (after reading a lot on multiple sites; I am not a lawyer) is that once you file I140 and I485 and six months are passed you can use AC21 provisions and continue the same I485 application if the new positions is same/similar even if old I140 is revoked. There are multiple scenarios here each having different levels of risks/issues (again as per my understanding):

(i) You filed I140 and I485 (concurrent or separate). I140 is approved. I485 is pending for six months. You got a job with another employer with same/similar function (i.e. same SOC code; and salary is not radically different; similar title). This is the straight forward case. You can change the job – send a letter to UCSIS in a proper format informing them of your job change and new address if any. No need to start the process from scratch at new place even if old employer revokes your I140 your 485 should be approved when priority dates are current.

(ii) You filed I140 and I485 (concurrent or separate). I140 is NOT approved. I485 is pending for six months. This is a bit complicated case but heard still possible if the old employer does not revoke the I140; but if its revoked then back to one at new employer. It might be possible to keep the priority date if relevant docs are collected (see next).

(iii) I140 is approved, you havnt yet applied for 485. If you change jobs you “might” be able to keep the priority date (if you can get documents). I am not sure if we can keep priority dates if I140 is revoked in this case.

Please comment if my understanding is correct.

Also on a related subject what happens to H1b extension if underlying I140 is revoked? My case is like this: am in 6th year of H1B; applying for I140. Once its approved, planning to apply for 3year extension. After that change employers with new 3year H1B (I know the process has to start fresh at the new place). What happens to my H1B if the old employer revokes the I140. Does this mean my extended h1b is invalid or I can continue without any issues? Anyone in similar situation?

nk2006
10-09-2006, 05:00 PM
As far as H-1, I don't understand: wont you need an H-1 transfer from your new employer, in that case the 3 yr extension will come from him, so it shouldnt matter if your old employer revokes I-140, since anyway you are planning to restart gc process.

Yes I do need the transfer from new employer but the original extension of H1B beyond six years is granted because I have an approved I140. I was wondering if revoking that I140 has any effect on the H1b too.

To give more specifics: six years of h1b will be completed in Feb ’07. PERM labor is approved and lets say if I140 is approved by Jan, my plan is to do one of two things:
(i) Immediately apply for 3 year extension of H1B from present employer. Wait until it’s approved – the new H1b is valid until Feb ‘10. After approval apply for h1b transfer. Is this possible? After the transfer if original I140 is revoked, I assume UCSIS is not going to recall my h1b. Am I right? The extended h1b period is with me to keep – is my understanding right?
(ii) After the approval of I140 (say in Jan), I will apply for h1b transfer and extension with new employer (extension based on the fact that I have an approved I140 and that priority date is not current). The hitch here is the approved I140 is from a different employer than the one asking for h1b extension. Is this possible? (I know that one year extension based on pending labor is not tied to which employer applied for the labor; is this rule same for approved I140 related extension?). What is effect of I140 revoke on this case?

Thanks a bunch.

qplearn
10-09-2006, 05:57 PM
yes!!

with AC21, you do not have to do the whole thing again......... that I am sure of!!
Does the job title have to be same? What if there is a promotion involved, i.e., the new job title is at a higher level? Will USCIS accept that?

qualified_trash
10-09-2006, 09:57 PM
Man ..Just ask him.
your point is??

qualified_trash
10-09-2006, 09:59 PM
Thanks for responding!!! Kisses (free beer if you are a guy):) :) :)

I can actually move!!!!
I will take the beer thanks!!

and my profile is on the Team IV page :-))

qplearn
10-10-2006, 10:14 AM
I will take the beer thanks!!

and my profile is on the Team IV page :-))

Didn't know you were a core member; but thanks anyway.

qplearn

qualified_trash
10-10-2006, 10:39 AM
Didn't know you were a core member; but thanks anyway.

qplearn


does that mean no beer!! :-))

qplearn
10-10-2006, 11:18 AM
does that mean no beer!! :-))

Yes, all the beer you want my friend, but just wait until I get another job. :)

I really need to thank you from the bottom of my heart, bcuz this was just the right moment for me to get this piece of information (I was under the impression that although you can keep your PD, you have to do labor, I-140 again.) For some reason, I had kept hearing a lot of mixed messages about AC21.

I just confirmed all this with my lawyer as well.

qplearn