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pa_arora
11-22-2006, 12:58 PM
Frendz,

I am in third year of h1 and have my 140 approved with PD Dec 2005.

If I change my employer, can I keep my priority date? I know i have to start over again but I think its wise to do so if i can keep my priority date.

Thanks
-p

pa_arora
11-22-2006, 03:31 PM
Thanks nelsonagn,

I need one more clarification in the regard. At what point will I be able to keep my PD. Lets say I have filed the new labor (from the new employer) and the old employer revokes 140. Will I be able to keep the old PD in such a case?

Thanks
-P

devimm01
11-23-2006, 08:19 PM
I am working with company X through I got I-140 with priority date Dec-2003 for EB3 category.

I applied LC and I-140 through new company for the future employment.If I want to port the priority date of my current company X to future company.

Is I-140 of my current company still valid if uanable to port PD to I140?.

pa_arora
11-25-2006, 09:55 PM
uh..la ..la..
ask a lawyer my friend.

gcpool
11-26-2006, 07:14 AM
I have heard that the priority date can be retained even if the I-140 is revoked by the employer. Maybe its not possible if a fraud is detected.

qualified_trash
11-26-2006, 10:28 AM
I have heard that the priority date can be retained even if the I-140 is revoked by the employer. Maybe its not possible if a fraud is detected.
that would be correct.........

DareYouFireMe
11-26-2006, 11:19 PM
I have heard that the priority date can be retained even if the I-140 is revoked by the employer. Maybe its not possible if a fraud is detected.

I guess you can't use PD if I-140 is cancelled by past employer. However, employer's H1B/GC programme may be adversely affected if you would complain with authorities if their is case of harrasment. (READ thread "Enough is Enough" for excepts from USCIS document)

WillIBLucky
11-27-2006, 09:50 AM
The PD cannot be tranferred from an employer X to employer Y. The PD i believe you guys know is the filing date of the Labor. Once your labor is approved then the filing date of the Labor becomes your PD for the rest of the GC Process.

So "NO Transfer" of PD is possible. Again, ask your lawyer and decide on any path you take. I understand even Lawyer are not perfect but they are better as they atleast will follow the right path.

WillIBLucky
11-27-2006, 10:24 AM
Again -
Here is a question that Shusterman answers -

Question #3: If I switch jobs before my I-140 is approved, Can I keep my priority date?

Carl Shusterman: No. This is true for cases that involve alien labor certifications. However, if your case does not involve alien labor certification, and you or your employer has filed an I-140 visa petition, you or your new employer can file a new I-140 and keep the earlier priority date.

Jennifer Wipf: Well, that made several people here happy at least. Let's look at the next question:


So since you are alien and require labor certification you cannot transfer PD. If EB1 I believe you can do that transfer of PD but not in EB2 or EB3 and if you are alien.

If you guys still believe you can, go ahead and take your chances. Godspeed!

qualified_trash
11-27-2006, 11:44 AM
Again -
Here is a question that Shusterman answers -

Question #3: If I switch jobs before my I-140 is approved, Can I keep my priority date?

Carl Shusterman: No. This is true for cases that involve alien labor certifications. However, if your case does not involve alien labor certification, and you or your employer has filed an I-140 visa petition, you or your new employer can file a new I-140 and keep the earlier priority date.

Jennifer Wipf: Well, that made several people here happy at least. Let's look at the next question:


So since you are alien and require labor certification you cannot transfer PD. If EB1 I believe you can do that transfer of PD but not in EB2 or EB3 and if you are alien.

If you guys still believe you can, go ahead and take your chances. Godspeed!
yes you cannot transfer PD with only an APPROVED LABOR CERT.

YOU CAN transfer PD with an approved I140.

WillIBLucky
11-27-2006, 12:08 PM
Is there anyone here in IV who has taken this path and retained the PD?

May be you are correct on retaining PD after I140. It would interesting to know if anyone has every done this and his/her experiences.

GCBy3000
11-27-2006, 12:40 PM
For sure yes, you can retain the PD once your first I140 is approved. But when and how this portable comes I dont know. I have applied two labors in the same company as I moved from location A to location B within the same company. I got the I140 cleared for the first labor just to make sure I port the PD. My Company filed for a new labor thur perm for location B. The second I140 is filed by my company and I dont see any mention about the previous PD on the second 140application. When I asked my company attorney, she says "YES, you have two PDs now and you can use whichever you want". But at what state I should report to USCIS about my PD I dunno?

If anyone knows WHEN EXACTLY THE PD is considered ported, let me know.

sri123
11-27-2006, 01:44 PM
Frendz,

I am in third year of h1 and have my 140 approved with PD Dec 2005.

If I change my employer, can I keep my priority date? I know i have to start over again but I think its wise to do so if i can keep my priority date.



You can check out more information on this thread.

http://immigrationvoice.org/forum/showthread.php?t=912&page=7

saturnring11
11-27-2006, 02:53 PM
I looked up this information on USCIS's website. It is clearly posted that once an I-140 is approved for an alien, the alien can keep the priority date for life.

The only way that the alien can lose this date is if fraud is detected in the case. Employer withdrawing I-140 does NOT affect priority date transfer.

All you need to transfer your priority date is a copy of your approved I-140 document. This is the most powerful piece of documentation in the whole employment-based immigration process.

What this means is that you can take a 10-year break from the US and come back and still have your Priority Date valid. Also, this is valid even if you switch categories, professions or anything else (Example EB-3 to EB-2).

Look on Page 27 of the USCIS Press Release
http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf

"(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alienís priority date is established by the filing of the labor certification, once the alienís Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest)."

Let's put this issue to rest now. Lawyers do not always know the right answers!

swarnapuri
11-27-2006, 04:55 PM
Thanks for link to the official documentation.

greencardfever
11-27-2006, 08:14 PM
Thanks a lot for the official link.:)

I asked my lawyer the following question:
I have a question about changing from EB3 to EB2. I am currently pursuing a part time MBA at a US university. When I have completed the MBA program, can my employer file a new LC under EB2 since an MBA would be an advanced degree? If yes, can I use my original EB3 LC priority date of March 2006 since my I-140 has been approved?

The answer I got was:
Unfortunately, you cannot file in that category since your education will have been obtained during your employment with the company.

Does this sound correct? :confused: Please let me know.

Thanks.

dixie
11-27-2006, 08:22 PM
This has nothing to do with porting your PD. It is well known that under PERM guidelines, you cannot use any experience or education gained while being employed with the petitioning employer. So the short answer is your lawyer is right.
Thanks a lot for the official link.:)

I asked my lawyer the following question:
I have a question about changing from EB3 to EB2. I am currently pursuing a part time MBA at a US university. When I have completed the MBA program, can my employer file a new LC under EB2 since an MBA would be an advanced degree? If yes, can I use my original EB3 LC priority date of March 2006 since my I-140 has been approved?

The answer I got was:
Unfortunately, you cannot file in that category since your education will have been obtained during your employment with the company.

Does this sound correct? :confused: Please let me know.

Thanks.

greencardfever
11-27-2006, 08:40 PM
Thanks for the quick reply :)

So does that mean that I can port my EB3 LC priority date of March 2006 and apply under the EB2 category if I switch employers after finishing my part time MBA? If yes, my situation is that I will have 1.5 years remaining (out of the total 6 years) on my H1B visa after completing my part time MBA, is there a time frame by which my new employer should file my EB2 LC or is it OK if it is filed anytime before the completion of the 6 H1B visa years for the priority date to be portable?

Please let me know. Thanks.

WillIBLucky
11-28-2006, 08:12 AM
The information I had was it looks now is completely WRONG. Sorry, to misguide you guys in this matter but it was not my intention.

Well on the other hand, I am glad I was part of this discussion as now I have something to think and act upon.

I looked up this information on USCIS's website. It is clearly posted that once an I-140 is approved for an alien, the alien can keep the priority date for life.

The only way that the alien can lose this date is if fraud is detected in the case. Employer withdrawing I-140 does NOT affect priority date transfer.

All you need to transfer your priority date is a copy of your approved I-140 document. This is the most powerful piece of documentation in the whole employment-based immigration process.

What this means is that you can take a 10-year break from the US and come back and still have your Priority Date valid. Also, this is valid even if you switch categories, professions or anything else (Example EB-3 to EB-2).

Look on Page 27 of the USCIS Press Release
http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf

"(1) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alienís priority date is established by the filing of the labor certification, once the alienís Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest)."

Let's put this issue to rest now. Lawyers do not always know the right answers!

GCBy3000
11-28-2006, 12:20 PM
I ask this again and again:

I agree that you can keep the PD once your I140 is approved. But my question is

How will you notifify(in which step / process) USCIS that you have an older PD for them to consider? Is it during the second labor filing? Is it during the second 140 filing? or is it during the 485 stage?

saturnring11
11-28-2006, 02:13 PM
Your lawyer may not be 100% right. If you get your MBA and move to a completely different position (like say, marketing), then the experience you gained in another role may not be a factor for changing to EB-2.

You will always keep your I-140 priority date as long it has been approved and no fraud is involved.

Thanks a lot for the official link.:)

I asked my lawyer the following question:
I have a question about changing from EB3 to EB2. I am currently pursuing a part time MBA at a US university. When I have completed the MBA program, can my employer file a new LC under EB2 since an MBA would be an advanced degree? If yes, can I use my original EB3 LC priority date of March 2006 since my I-140 has been approved?

The answer I got was:
Unfortunately, you cannot file in that category since your education will have been obtained during your employment with the company.

Does this sound correct? :confused: Please let me know.

Thanks.

saturnring11
11-28-2006, 02:15 PM
I ask this again and again:

I agree that you can keep the PD once your I140 is approved. But my question is

How will you notifify(in which step / process) USCIS that you have an older PD for them to consider? Is it during the second labor filing? Is it during the second 140 filing? or is it during the 485 stage?

When you file your 2nd I-140, attach a copy of the approval notice for your original I-140. This is all you need. Anyone with an approved I-140 should guard the approval notice as if it were gold!

saturnring11
11-28-2006, 02:22 PM
Thanks for link to the official documentation.

Not a problem, Swarna. The beauty of it is that all the information is available for free online. Yet, greedy lawyers charge $200 for 30 minutes of consultation based on 5 minutes of research that any person with a high-school diploma could do.

As always, knowledge is power.

saturnring11
11-28-2006, 02:27 PM
Another quote from the same source. Page 28 for the research-oriented people.

It appears the USCIS writer has a sense of humor. See the case of "Joe" who switches from EB-3 Janitor to EB-1 Rocket Scientist!

"(3) Priority Date Based on Earlier Petition. If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions. For example: Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB-1 or the EB-3 classification."

GCBy3000
11-28-2006, 02:59 PM
I have a older approved 140 with the same company and my attorney did not attach it with the newer 140. When I asked about it, she said I can use any of the two PDs. I got consfused because, I dont know when to use?. She did not attach the older approved 140 notice when she filed the later one.

Here is my attorney's response when my HR asked about the PD portability.
"Technically he has two priority dates, one from his RIR labor certification and one from his PERM filing. Under current law, we can file his adjustment of status application using the earlier priority date of 03/05/04 from his RIR labor certification.

Please let me know if you have other questions."

When you file your 2nd I-140, attach a copy of the approval notice for your original I-140. This is all you need. Anyone with an approved I-140 should guard the approval notice as if it were gold!

greencardfever
11-28-2006, 05:12 PM
About Saturnring11's response:

"Your lawyer may not be 100% right. If you get your MBA and move to a completely different position (like say, marketing), then the experience you gained in another role may not be a factor for changing to EB-2.

You will always keep your I-140 priority date as long it has been approved and no fraud is involved."

Is this true? :confused: If yes, I am a programmer/analyst right now. After completing my MBA, is there a technical position that I can remain in that would be enough of a change to be able to file under EB-2 within the same company? Maybe a project manager, systems analyst, or anything that does not involve 100% programming (can you suggest another job title if you can think of any)? :confused:

Please let me know. Thanks.

saturnring11
11-28-2006, 05:31 PM
About Saturnring11's response:

"Your lawyer may not be 100% right. If you get your MBA and move to a completely different position (like say, marketing), then the experience you gained in another role may not be a factor for changing to EB-2.

You will always keep your I-140 priority date as long it has been approved and no fraud is involved."

Is this true? :confused: If yes, I am a programmer/analyst right now. After completing my MBA, is there a technical position that I can remain in that would be enough of a change to be able to file under EB-2 within the same company? Maybe a project manager, systems analyst, or anything that does not involve 100% programming (can you suggest another job title if you can think of any)? :confused:

Please let me know. Thanks.

I'm not a legal expert but I have read the USCIS press releases on EB immigration. If you are eligible for EB-2 (check around the USCIS website for the requirements for this), you can use your earlier priority date.

Obviously, an MBA qualifies you for a non-technical position. If your company can justify that you need an MBA for a particular position then that should be it.

bkarnik
11-29-2006, 08:52 PM
Please refer to the thread "This thread is to track successful transfers..." this issue has been addressed there.