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  #1 (permalink)  
Old 03-02-2010, 02:06 PM
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Post H1B/Priority Date porting after Citizenship change to Canada

My case is as detailed below, and my questions follow:

PD: July 2007, EB2 (India), Software field
Labor, I-140: Approved, I-485 etc. NOT filed.
H1 Petition and Visa valid until: Jan 2011 (after 7th year extension)
Currently outside US, NOT working for the H1 sponsoring employer.
My employer has NOT revoked my H1 or I-140.
I was working for the employer in US where the GC process started. Then moved to Canada in early 2008 when the PD was highly retrogressed/unavailable. Since then, worked in Canada in related field for a different (Canadian) employer. Things have been tough here: lower pay, very high taxes, friends all in US, and especially - the weather. We would like to return to US.

I will soon be able to apply for Canadian citizenship. I am in a dilemma now - whether to return to US on H1 NOW or to become a Canadian citizen and try my options LATER. I have the following questions:

(Same employer, as Indian citizen, knowing that I did not work for them for over 2 yrs, and was outside USA):
1) can I now(or anytime until Jan 2011 visa expiry) return to US to work for the same H1 sponsoring employer on the existing H1?
2) would I be allowed the H1 extension in Jan 2011 based on approved I-140? Or is that doomed to be rejected because I was not working for the employer in between for over 2 yrs.
3) Would the fact that I was out of US for 2 years help me get a "regular" extension?
4) could I continue the GC after a gap of 2 yrs while I was not working for the employer?
5) if yes, will my PD of July 2007 be maintained?

(Different employer, as Indian citizen, knowing that I am currently out of the US):
6) if I get an offer from a different employer in US, could the new employer do an H1 "transfer"? i.e. would I need to wait for the April 1/October for H1 application/visa and would it be counted against the yearly H1 quota - or - can the new employer do the H1 "transfer" immediately?
7) For the H1 "transfer", would I need to produce US paystubs for the last few months (which I cannot, since I am not in US)?
8) if the new employer applies for my GC, could I re-use my old PD of July 2007? If yes, would the profile need to be exactly the same as the previous Labor/I-140?

If I become a Canadian Citizen:
9) if I become a Canadian citizen, (my H1 would have expired by then) will I be able to return to work on H1 in US for the same or a different employer as a Canadian Citizen?
10) could I reuse my PD of July 2007 when working for the same or a different employer after changing my Citizenship? Would the job profile need to be the same?

Also:
11) is it possible to switch the GC processing to "future employment", although the Labor/I-140 were approved with the understanding that I was to continue working for the same employer?
12) is the H1 visa/Priority Date of approved labor/I-140 carried over when the individual changes citizenship - from Indian to Canadian?
13) when do the dependents' citizenship come into the picture in the GC process? If I continue to be an Indian citizen but my spouse becomes a Canadian citizen, will my approved Labor/I-140 be affected in any way?

Please help me in getting the facts so that I can make an informed decision in this dilemma. Any help appreciated.

Last edited by vardinishankar; 03-02-2010 at 02:15 PM.
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  #2 (permalink)  
Old 03-02-2010, 02:43 PM
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Default Country of birth drives priority date.

As far as i know-----

Answer to Q#10 :
Country Of Birth drives priority date and NOT Naturalized Citizenship.

So, if you were born in India then your priority date goes by India PD no matter what citizenship you currently have.

Thanks,
Krishna

Last edited by krishna_brc; 03-02-2010 at 02:56 PM. Reason: grammar
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  #3 (permalink)  
Old 03-02-2010, 02:57 PM
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Quote:
Originally Posted by krishna_brc View Post
As far as i know-----

Answer to Q#10 :
Country Of Birth drives priority date and not Naturalized Citizenship.

So, if you were born in India then your priority date goes by India PD no matter what citizenship you currently have.

Thanks,
Krishna
Thank you Krishna. The question really is whether my Labor/I-140 approvals as Indian citizen can be used to continue the GC (to file the I-485) after I change my citizenship. Would you know about that?

Or, if a new GC process is restarted with a new employer, can the old priority date be re-used in the new GC process after citizenship has changed?

Thanks.
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  #4 (permalink)  
Old 03-02-2010, 03:13 PM
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Default

Quote:
Originally Posted by vardinishankar View Post
Thank you Krishna. The question really is whether my Labor/I-140 approvals as Indian citizen can be used to continue the GC (to file the I-485) after I change my citizenship. Would you know about that?

Or, if a new GC process is restarted with a new employer, can the old priority date be re-used in the new GC process after citizenship has changed?

Thanks.
1. Ans 1 - Yes, Labor/I-140 approvals as Indian citizen can be used to continue the GC. Like i said USCIS considers Country Of Birth of Foreign Nationals and not their Citizenship

2. Ans 2- Old PD can be used with new employer as long as 140 is approved and not revoked.
refer to below links

1.
Copy paste this link " .com/greencard/employmentbasedimmigration/i-140-premium-processing.html "
And " murthy.com/chatlogs/ch121905_P.html "
Chat User : How do I know whether my previous employer revoked my LC or not? I want to use my previous employer’s priority date if that is not revoked.

Attorney Murthy : A person is not allowed to use the earlier employer's LC priority date filing with a new LC case filed with a new employer unless the earlier I-140 had been approved with that earlier employer. If the I-140 petition had not been approved, then each time a person changes employers, a person will start with a new PD. The only exception was for 245(i) cases where the petition or application had to be approvable when filed, but that only applies to the ability to file the I-485 and not to carry over that PD for a new case.

Thanks.[/quote]

Last edited by krishna_brc; 03-02-2010 at 03:28 PM. Reason: grammar
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  #5 (permalink)  
Old 03-02-2010, 03:35 PM
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Default

Quote:
Originally Posted by vardinishankar View Post
My case is as detailed below, and my questions follow:

PD: July 2007, EB2 (India), Software field
Labor, I-140: Approved, I-485 etc. NOT filed.
H1 Petition and Visa valid until: Jan 2011 (after 7th year extension)
Currently outside US, NOT working for the H1 sponsoring employer.
My employer has NOT revoked my H1 or I-140.
I was working for the employer in US where the GC process started. Then moved to Canada in early 2008 when the PD was highly retrogressed/unavailable. Since then, worked in Canada in related field for a different (Canadian) employer. Things have been tough here: lower pay, very high taxes, friends all in US, and especially - the weather. We would like to return to US.

I will soon be able to apply for Canadian citizenship. I am in a dilemma now - whether to return to US on H1 NOW or to become a Canadian citizen and try my options LATER. I have the following questions:

(Same employer, as Indian citizen, knowing that I did not work for them for over 2 yrs, and was outside USA):
1) can I now(or anytime until Jan 2011 visa expiry) return to US to work for the same H1 sponsoring employer on the existing H1?

Yes...you can as long as your employer is also supporting you


2) would I be allowed the H1 extension in Jan 2011 based on approved I-140? Or is that doomed to be rejected because I was not working for the employer in between for over 2 yrs.

GC is for future employement and it should not affect. You are already out of the country for more than a year. So your 6 year limit is reset now.
3) Would the fact that I was out of US for 2 years help me get a "regular" extension?

I believe it should not have impact as the six year clock is reset and you also have I-140 approved


4) could I continue the GC after a gap of 2 yrs while I was not working for the employer?

Again, GC is for future employment.
5) if yes, will my PD of July 2007 be maintained?

Yes, if I-140 is not revoked. Different attornyes have different opinion about revoked I-140
(Different employer, as Indian citizen, knowing that I am currently out of the US):

6) if I get an offer from a different employer in US, could the new employer do an H1 "transfer"? i.e. would I need to wait for the April 1/October for H1 application/visa and would it be counted against the yearly H1 quota - or - can the new employer do the H1 "transfer" immediately?

If your H1B is not expired, you can do transfer. I am not sure about the limitation if the H1B expired.


7) For the H1 "transfer", would I need to produce US paystubs for the last few months (which I cannot, since I am not in US)?

You may need to provide the W-2 for the years you were working in the US

8) if the new employer applies for my GC, could I re-use my old PD of July 2007? If yes, would the profile need to be exactly the same as the previous Labor/I-140?

You can retain the PD if the I-140 is not revoked. No need


If I become a Canadian Citizen:
9) if I become a Canadian citizen, (my H1 would have expired by then) will I be able to return to work on H1 in US for the same or a different employer as a Canadian Citizen?

Its upto you and the sponsoring employer.


10) could I reuse my PD of July 2007 when working for the same or a different employer after changing my Citizenship? Would the job profile need to be the same?

Citizenship will not affect your PD


Also:
11) is it possible to switch the GC processing to "future employment", although the Labor/I-140 were approved with the understanding that I was to continue working for the same employer?
12) is the H1 visa/Priority Date of approved labor/I-140 carried over when the individual changes citizenship - from Indian to Canadian?

NO

13) when do the dependents' citizenship come into the picture in the GC process? If I continue to be an Indian citizen but my spouse becomes a Canadian citizen, will my approved Labor/I-140 be affected in any way?

It wont untill your spouse born in different country.
Please help me in getting the facts so that I can make an informed decision in this dilemma. Any help appreciated.
Check the answer above
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  #6 (permalink)  
Old 03-02-2010, 04:11 PM
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Thanks Krishna and snathan! That answers most of my questions.

snathan:
Quote:
Quote:
11) is it possible to switch the GC processing to "future employment", although the Labor/I-140 were approved with the understanding that I was to continue working for the same employer?
12) is the H1 visa/Priority Date of approved labor/I-140 carried over when the individual changes citizenship - from Indian to Canadian?
NO
I guess you meant "NO" to # 11 and "YES" to #12 - right?
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  #7 (permalink)  
Old 03-02-2010, 04:24 PM
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Default

Changing citizenship does not affect how Priority Dates are recaptured (aka pd porting).

Once you are Canadian citizen, you can also avail TN visa (in addition to H-1B) to work for US employer.
Check this link
NAFTA • U.S. Consular Services in Canada



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  #8 (permalink)  
Old 03-02-2010, 04:35 PM
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Quote:
Originally Posted by vardinishankar View Post
....
11) is it possible to switch the GC processing to "future employment", although the Labor/I-140 were approved with the understanding that I was to continue working for the same employer?
Yes. GC is always for future employment.

Quote:
Originally Posted by vardinishankar View Post
12) is the H1 visa/Priority Date of approved labor/I-140 carried over when the individual changes citizenship - from Indian to Canadian?
Changing citizenship does not affect how Priority Dates are recaptured.

Quote:
Originally Posted by vardinishankar View Post
13) when do the dependents' citizenship come into the picture in the GC process? If I continue to be an Indian citizen but my spouse becomes a Canadian citizen, will my approved Labor/I-140 be affected in any way?
It is country-of-birth that matters. if your spouse is born in another country that is not subject to PD backlog, you may apply your I-485 to your spouse’s country of birth.


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  #9 (permalink)  
Old 03-02-2010, 04:59 PM
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Thanks. One question, I may not have asked it properly:

Quote:
Originally Posted by vardinishankar
Quote:
....
11) is it possible to switch the GC processing to "future employment", although the Labor/I-140 were approved with the understanding that I was to continue working for the same employer?
Yes. GC is always for future employment.
What I had (mis-) understood till date was: there were 2 ways for employment based GC: 1) if I was outside US all along, and the employer applied my employment based GC for future employment, and 2) if I was working in US for the employer and he applied for my EB2 GC based on the job that I was offered and was working on.
I understood that I was in the (2) category, and was wondering if my employer could switch my GC processing (Labor/I-140 approved) to the (1) type. Is this possible?

I might have got mixed up with the Consular Processing vs AoS, but from what I read, those terms would really come into picture only after the 485 stage, isn't it?
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  #10 (permalink)  
Old 03-02-2010, 05:08 PM
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Quote:
Originally Posted by vardinishankar View Post
Thanks. One question, I may not have asked it properly:

What I had (mis-) understood till date was: there were 2 ways for employment based GC: 1) if I was outside US all along, and the employer applied my employment based GC for future employment, and 2) if I was working in US for the employer and he applied for my EB2 GC based on the job that I was offered and was working on.
Both are for future employment.
1) means immigrant visa at consulate abroad (consular processing)
2) choice of immigrant visa at consulate abroad OR I-485 application to adjust status

It is possible to switch from I-485 to immigrant visa abroad by filing I-824 with NVC.



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  #11 (permalink)  
Old 03-04-2010, 11:23 AM
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From what I know TN visa is not dual intent like H1B. So you can't continue processing your GC when holding a TN visa.


Quote:
Originally Posted by desi3933 View Post
Changing citizenship does not affect how Priority Dates are recaptured (aka pd porting).

Once you are Canadian citizen, you can also avail TN visa (in addition to H-1B) to work for US employer.
Check this link
NAFTA • U.S. Consular Services in Canada


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  #12 (permalink)  
Old 03-04-2010, 02:17 PM
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Quote:
Originally Posted by new_horizon View Post
From what I know TN visa is not dual intent like H1B.
This is correct.

Quote:
Originally Posted by new_horizon View Post
So you can't continue processing your GC when holding a TN visa.
This is NOT correct.

I-140 Filing Not Dispositive for TN - NAFTA TN Lawyer - Brian D. Zuccaro - Buffalo, NY
[From the link]
The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily.



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  #13 (permalink)  
Old 03-04-2010, 09:38 PM
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I am trying to find out more about the priority date porting - any pointers to details on how/when it is allowed? From various threads it appears that some of these are successful, but in other cases, some attorneys may not even pursue PD porting.

If the I-140 is approved with the previous employer (for over 2 years) but I-485 has not been filed, does PD porting require that the new GC application have exactly the same job profile as the one for which the original Labor was filed and I-140 approved?

Thanks.
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Old 03-10-2010, 12:34 PM
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Quote:
Originally Posted by vardinishankar View Post
....does PD porting require that the new GC application have exactly the same job profile as the one for which the original Labor was filed and I-140 approved?
No.

The only requirement is that both I-140 must have same beneficiary and all I-140 must belong to eb-1, eb-2, OR eb-3 preference categories.


The Priority Date recapture applies ONLY for immigrant petitions (I-140) approved under EB-1, EB-2 or EB-3 classification.



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  #15 (permalink)  
Old 03-10-2010, 01:02 PM
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Quote:
Originally Posted by desi3933 View Post
No.

The only requirement is that both I-140 must have same beneficiary and all I-140 must belong to eb-1, eb-2, OR eb-3 preference categories.


The Priority Date recapture applies ONLY for immigrant petitions (I-140) approved under EB-1, EB-2 or EB-3 classification.



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Thank you very much for coming back to this - it really clarifies a lot of doubts I had in my mind. Appreciate it!
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