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myuname
06-18-2007, 11:04 AM
Currently filing I-485 with old employer's employment offer letter. Can I later substitute older I-140 with newer I-140 from current employer while continuing the I-485 application?

Thanks,

desi3933
06-18-2007, 04:36 PM
Currently filing I-485 with old employer's employment offer letter. Can I later substitute older I-140 with newer I-140 from current employer while continuing the I-485 application?

Thanks,

Yes.

Request PD transfer for I-140 and after getting I-140 with the ported PD, file I-140 for the pending I-485
OR
File I-140 for the filed I-485 along with letter requesting PD transfer.

Please check and verify details with your attorney/lawyer. This is NOT a legal advice.

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Permanent Resident since May 2002

gene77
06-18-2007, 07:14 PM
I have an approved I-140 (EB3 PD Oct 2004) and a pending I-140 (EB2 PD Jun 2006). Both from the same employer/company, for different job requirements.

If on July 01 I file my I-485 using the approved I-140 (EB3 PD Oct 2004), when the dates for EB3 retrogress in the coming months, and after the currently pending EB2 I-140 is approved, will I be able to request USCIS to substitute my EB2 I-140 with the EB3 I-140 for the same I-485?

???

gene77
06-19-2007, 10:54 AM
desi3933 / Tom / Someone please reply....

desi3933
06-19-2007, 11:00 AM
I have an approved I-140 (EB3 PD Oct 2004) and a pending I-140 (EB2 PD Jun 2006). Both from the same employer/company, for different job requirements.

If on July 01 I file my I-485 using the approved I-140 (EB3 PD Oct 2004), when the dates for EB3 retrogress in the coming months, and after the currently pending EB2 I-140 is approved, will I be able to request USCIS to substitute my EB2 I-140 with the EB3 I-140 for the same I-485?

???

Yes. Applicant can use the earliest PD for any approved I-140s and with the highest category for any I-140. In your case, after your second I-140 is approved, you can claim PD of eB2 Oct 2004.

Again, you can claim PD of eb2 Oct 2004 after second I-140 is approved.

Please check and verify details with your attorney/lawyer. This is NOT a legal advice.

----------------------------------
Permanent Resident since May 2002

desi3933
06-19-2007, 11:01 AM
Yes. As Far As Your Priority Date Is Current At The Time You Substitute It.

Incorrect.

immigc06
06-19-2007, 11:02 AM
HI, I am working for company A, i have used company B's labor substitution and applied for 140 as future employment. Can i file for 485 with company B's labor. If for any reason it gets rejected would it affect future 485's.

My current company is willing to labor only in Oct'07. If i apply thru company A, can i port the date from company B's I-140 if approved???

Please advice.

desi3933
06-19-2007, 12:31 PM
HI, I am working for company A, i have used company B's labor substitution and applied for 140 as future employment. Can i file for 485 with company B's labor.

If for any reason it gets rejected would it affect future 485's.
Depends on reasons why first I-485 was denied.

My current company is willing to labor only in Oct'07. If i apply thru company A, can i port the date from company B's I-140 if approved???
This has been answered many times. Please do some research.

Please advice.

See above in Blue.

gene77
06-19-2007, 01:39 PM
Desi3933:

You wrote, //Yes. Applicant can use the earliest PD for any approved I-140s and with the highest category for any I-140. In your case, after your second I-140 is approved, you can claim PD of eB2 Oct 2004.

Again, you can claim PD of eb2 Oct 2004 after second I-140 is approved.//

My PD for EB2 is not Oct 2004, it is Jun 2006.

Again,
EB2 - PD Jun 2006, I-140 pending.
EB3 - PD Oct 2004, I-140 approved.

I understand that an alien can use the earliest PD irrespective of the EB category in case of multiple approved I-140s. However, my case is different in that I want to port the EB category itself (I think - I don't fully understand yet).

If I file I-485 using EB3 category, I'll have the PD of Oct 2004 automatically. Knowing that I'll retain the PD of Oct 2004, will I be able to request INS to substitute the EB3 I-140 with the EB2 I-140?

gene77
06-19-2007, 02:07 PM
gene77,
If I am not wrong...yes, you can. You can request an amendment to 485 requesting to use the EB3 I140You mean 'to use the EB2 I-140 cause that is the one that is currently pending approval.I am already filing I-485 using the EB3 I-140..

I BELIEVE, YOU CAN JUST REQUEST THE PRIORITY DATE WITHOUT ACTUALLY AMENDING THE 485 TO REPLACE THE I140 so that you can be on EB2 with your earlier PD. But I am not sure if just the pd can be changed without actually replacing the I140.I don't think I need to request the PD since the 485 will be filed against the PD of Oct 2004, I just need to request them to substitute the EB category from EB3 to EB2 once the EB2 I-140 is approved.


Please see the clarification in RED, am I making sense. I really confused by now and am sure I'm confusing both you and Desi3933 - sorry folks, and thanks for bearing with me.

desi3933
06-19-2007, 02:26 PM
Desi3933:

You wrote, //Yes. Applicant can use the earliest PD for any approved I-140s and with the highest category for any I-140. In your case, after your second I-140 is approved, you can claim PD of eB2 Oct 2004.

Again, you can claim PD of eb2 Oct 2004 after second I-140 is approved.//

My PD for EB2 is not Oct 2004, it is Jun 2006.

Again,
EB2 - PD Jun 2006, I-140 pending.
EB3 - PD Oct 2004, I-140 approved.

I understand that an alien can use the earliest PD irrespective of the EB category in case of multiple approved I-140s. However, my case is different in that I want to port the EB category itself (I think - I don't fully understand yet).

If I file I-485 using EB3 category, I'll have the PD of Oct 2004 automatically. Knowing that I'll retain the PD of Oct 2004, will I be able to request INS to substitute the EB3 I-140 with the EB2 I-140?

This is correct.

One can use earliest PD with the highest I-140 as long as I-140 are approved and not withdrawn/canceled.

Example: eb2 jan 2007, eb3 Feb 2005
Person can claim eb2 Feb 2005. This is just one example of Priority date porting. In this case from eb3 to eb2.

desi3933
06-19-2007, 02:29 PM
Hi Desi,
I still believe my answer above is correct. The question is..whether the person can change the I140 while 485 is pending. The answer is yes. How ever, it may not be possible if the priority date is not current. The person will have to wait until the priority date becomes current. The priority date is the earliest date of the I140s.

How ever, one thing I am not very sure is>..suppose the priority date is not current and iof the person want to change the I140. Is it possible without the priority date being current...OR should he/she wait until the priority date becomes current again to make this change?

All I can say, we agree to disagree.

Have a good day!

gene77
06-19-2007, 02:43 PM
Thank you Desi3933 and Tom - it's clear now.

gene77
06-20-2007, 01:51 AM
What is your disagreement about? Which part do you disagree - I understood both of you to be saying the same thing, giving the same advice.

Gene.

gene77
06-21-2007, 01:13 AM
Folks:

Can you please provide a web link where one can read the guidance you have provided. Please see below, I found this on Murthy.com and this contradicts what we've all agreed upon the previous posts on this thread.

"Substitution of Immigrant Petitions in Pending Adjustment Applications

On May 9, 2000, Michael Pearson, Executive Associate Commissioner, Office of Field Operations, issued a Memorandum (“Pearson Memo”) on transferring Section 245 adjustment of status applications to new or subsequent immigrant visa petitions.

The Pearson Memo discusses what happens if the I-485 is already pending when the subsequent petition is approved. The Memo pointed out that a person can substitute an approved I-130 or I-140 Petition with a newly approved petition while the adjustment application is pending, as long as the priority date is current at the time the substitution is effected. According to the Pearson Memo this I-485 substitution procedure is available only within the same preference category -- a policy that appears to contradict prior INS guidance on this issue.

Further INS clarifications are needed. If the two petitions are in different preference categories, the person must wait to file the I-485 after the second I-140 is approved, because substitution would apparently not be possible in that situation. The option of substituting the I-140 approval to a pending adjustment application is only available up to the point at which the I-485 is finally adjudicated. The Pearson Memo points out that allowing such substitutions benefits the INS and the applicant, saving time and work for both parties.

While many of us were aware of the possibility of substituting a newly approved I-140 with a new employer -- for example, in a pending adjustment application -- the Pearson Memo provides additional information on this issue. The Law Office of Sheela Murthy has been assisting clients with such substitutions ever since INS indicated towards the end of 1999 that such a procedure was allowed."

If I'm reading this correctly, they don't allow substitution of 140s (when 485 is pending) if the 140s are in different preference categories - which is exactly what my case is.

Thoughts folks....?

Gene.

desi3933
06-21-2007, 11:37 AM
Folks:

Can you please provide a web link where one can read the guidance you have provided. Please see below, I found this on Murthy.com and this contradicts what we've all agreed upon the previous posts on this thread.

"Substitution of Immigrant Petitions in Pending Adjustment Applications

On May 9, 2000, Michael Pearson, Executive Associate Commissioner, Office of Field Operations, issued a Memorandum (“Pearson Memo”) on transferring Section 245 adjustment of status applications to new or subsequent immigrant visa petitions.

The Pearson Memo discusses what happens if the I-485 is already pending when the subsequent petition is approved. The Memo pointed out that a person can substitute an approved I-130 or I-140 Petition with a newly approved petition while the adjustment application is pending, as long as the priority date is current at the time the substitution is effected. According to the Pearson Memo this I-485 substitution procedure is available only within the same preference category -- a policy that appears to contradict prior INS guidance on this issue.

Further INS clarifications are needed. If the two petitions are in different preference categories, the person must wait to file the I-485 after the second I-140 is approved, because substitution would apparently not be possible in that situation. The option of substituting the I-140 approval to a pending adjustment application is only available up to the point at which the I-485 is finally adjudicated. The Pearson Memo points out that allowing such substitutions benefits the INS and the applicant, saving time and work for both parties.

While many of us were aware of the possibility of substituting a newly approved I-140 with a new employer -- for example, in a pending adjustment application -- the Pearson Memo provides additional information on this issue. The Law Office of Sheela Murthy has been assisting clients with such substitutions ever since INS indicated towards the end of 1999 that such a procedure was allowed."

If I'm reading this correctly, they don't allow substitution of 140s (when 485 is pending) if the 140s are in different preference categories - which is exactly what my case is.

Thoughts folks....?

Gene.

Please read carefully. I don't know why some people are so much confused.

According to memo:
If the two petitions are in different preference categories, the person must wait to file the I-485 after the second I-140 is approved

Where it says anything about pending I-485. All it says that one has wait to file I-485 if he/she more than one immigrant petitions (i.e. I-140 and/or I-130).

I will try to dig out memo that says person is eligible for earliest PD with highest preference category amongst approved I-140s. One thing to note is that one can NOT port PD between I-130 and I-140.

Please check and verify details with your attorney/lawyer. This is NOT a legal advice.
-------------------------------------
Permanent Resident since May 2002

gene77
06-21-2007, 11:48 AM
Ok, so I must file my I-485 only after the EB2 140 is approved? Is that what you are saying?

I will be eligible for for earliest PD with highest preference category amongst approved I-140s only if I wait for both I-140s to be approved correct?

gene77
06-21-2007, 02:33 PM
I'm really torn (like literally) don't know which decision to make.

1. File now against EB3, hope to be able to port the EB2 140 when that comes through - if I can't do that then I'll again be stuck in retrogression.

OR,

2. Wait till the EB2 140 is approved and then file.

I'm waiting for Desi3933, he said he'll be searching for some memos that might help me.

Thank you again.

Feb04
06-21-2007, 02:55 PM
Folks -

Can someone post any links about the I140 substitution which gives more details. I have never heard of something like this and am really interested as it can help solve my current problem.

I am working for employer A and have an approved LC and 140 from employer B. A has recently filed my PERM application and is willing to file 140 and 485 if the dates remain current. Employer B is also willing to file my 485 but I am not sure if I would go back and work for B.

Ideally I would like to file through employer A but am not sure if the dates will current till the time my PERM approval comes through. Both are EB 2 cases.

Any help would be appreciated.

gene77
06-21-2007, 03:17 PM
and see if that is applicable to your case or not.

desi3933
06-21-2007, 06:02 PM
....

I will try to dig out memo that says person is eligible for earliest PD with highest preference category amongst approved I-140s. One thing to note is that one can NOT port PD between I-130 and I-140.

....


Attached are 4 pages (out of 99) from that memo.

On Page 3, it says-
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.

Hope it helps.

I would like make an appeal here: If this is helpful, please consider making some contribution for IV. Thank You.

Please check and verify details with your attorney/lawyer. This is NOT a legal advice.
-------------------------------------
Permanent Resident since May 2002

saratswain
06-26-2007, 01:48 PM
http://www.murthy.com/news/UDpen485.html