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Retrogression, priority dates and Visa bulletins Issues surrounding the retrogression of the priority dates for the various employment based categories

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  #1 (permalink)  
Old 05-15-2006, 08:39 PM
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Dec-03
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wata is on a distinguished road
Unhappy 140 approved in EB3, PD December 03, Should I re-file GC in EB2?

I have MS degree in Com Sci, I first filing EB3 as system analyst. I-140 approved with PD December 03. My lawyer said I can file new Perm LC in EB2 as IT manager (my current position in this company), it should take 2 months ad, and 4 months perm. After that I can file 140 concurrently with 485, and as AC21 I can change job or even be self – employed after filing 485 in 6 months so total of 1 year.

First question, Is this OK by law to do?

Second question, as every body talking about new immigration reform and seem to be positive and support by Mr. President to increase the quota ..etc
My question is should I go ahead and do new LC perm in EB2 or wait until EB3 PD become current, which way is going to be faster. I don’t want to waste my money for new perm and the next month EB3 category is become current. In other word, if let say all amendment is approved, when it will be effective and become a law for everybody.

Thanks for the answer

Last edited by wata; 05-15-2006 at 09:32 PM.
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  #2 (permalink)  
Old 05-15-2006, 11:12 PM
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onemoredesi is on a distinguished road
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I think that is a very good idea. If my EB3 Labor approves, that is exactly what I am going to do also.. Remember once your I140 approves, your Priority date is locked.. so, even if you file for your labor at a later date, your PD remains 2003, so, I'd say donot think twice and proceed with EB2 filing... atleast there is a chance thate EB2 may move at least 1 yr in the next few months.. so, you could file for your 485 as well... my 2 cents..

1MoreDesi !
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  #3 (permalink)  
Old 05-16-2006, 12:54 PM
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when_end is on a distinguished road
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I am in the same boat. My priority date is August 2003. If I re-apply the PERM in the same company and get 140 cleared, does anyone know probably how long will it takes?
Thanks!
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  #4 (permalink)  
Old 05-16-2006, 08:38 PM
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Mar-04
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Sree_Vaas is on a distinguished road
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I just spoke with my lawyer as I am in a similar boat. Looks like 1 labor per person per company. So I guess you can't file in the same company. You have to switch the company and file in a diff category, once I140 approved at both places, you can carry the earlier PD to the later one.
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  #5 (permalink)  
Old 05-16-2006, 09:06 PM
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Dec-07
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01/31/2008
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dixie will become famous soon enough
Default EB-2 not any better than EB-3

the latest visa bulletin bursts the myth that EB-2 is any better than EB-3 when it comes to retrogression for Indians. The PDs have got stuck on jan 2003, so I dont see how filing a parallel app in EB-2 is going to help matters.
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  #6 (permalink)  
Old 05-17-2006, 09:36 AM
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gc03 is on a distinguished road
Unhappy No more concurrent filing

You may not able to use concurrent filing, by the time you get your EB2 labor.

05/09/2006: Imporant Procedural Changes Forthcoming for I-140/I-485
Concurrent Filing and NIW Read on
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  #7 (permalink)  
Old 05-17-2006, 12:39 PM
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Mar-05
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mrajatish will become famous soon enough mrajatish will become famous soon enough
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You may be in trouble if the previous company withdraws 140 and reuses original labor for substitution. Check this very carefully before you take such a step.
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  #8 (permalink)  
Old 05-18-2006, 11:14 AM
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abhikal is on a distinguished road
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isnt labor substitution banned ? just curious! if it isnt then probably when as there was a lot of buzz around arpil that it was going to be forced upon/????

kindly someone pls clarify this for me

thanks
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  #9 (permalink)  
Old 05-18-2006, 11:16 AM
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Mar-05
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mrajatish will become famous soon enough mrajatish will become famous soon enough
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No, it is still being debated - it has not ben published as a rule in the Federal Register. Big companies do not want it to go away for legit. reasons as they have paid thousands of dollars to get a cert.

Smaller evil companies love labor sub. as they practice free market trade with this. Either way, it may be difficult to do away with labor sub., but if DOL does remove labor. sub, then you are safe.

Last edited by mrajatish; 05-18-2006 at 11:19 AM.
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  #10 (permalink)  
Old 05-18-2006, 06:44 PM
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jsaradhi is on a distinguished road
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I'm in the same boat as well. What if the amendments actually get implemented and the PD becomes current before your new EB2 LC+I140 are approved? Do we lose our previous PD? I just want to make sure before I actually go ahead and do it this way. My PD is Nov 2003 in EB3 category.

Thanks!
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  #11 (permalink)  
Old 05-19-2006, 03:15 AM
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You can use a previously approved I140 for a new case BUT please let us know that this is not applicable globally.

a) If you refile a new petition from the same company, you have no problems as your old labor still is yours.

b) If you refile from another company and if the previous company uses up your labor and files I140 for another person, the I140 date is no more yours.

c) If you refile from another company and if the previous company revokes the I140, the date is gone.

My company is planning to move me to another location and I fall in category (a) as of now. When I came to know about it , I did get the idea of jumping ships and keeping my PD but soon found about (b) and (c) from another lawyer. Maybe I'm still wrong.... Can someone confirm if (b) and (c) is correct interpretation on my part ?
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  #12 (permalink)  
Old 05-19-2006, 09:46 AM
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balu_g is on a distinguished road
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Hi Guys, Please go through the article:-
http://www.ilw.com/articles/2005,1004-mehta.shtm

which talks about:-
8 C.F.R. § 204.5(e)

which is described here:-
http://www.uscis.gov/lpbin/lpext.dll...ment-frame.htm

It does not talk about the circumstances under which an I-140 can be revoked. It will be good if we can get it clarified from a good immigration lawyer.
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  #13 (permalink)  
Old 05-19-2006, 11:08 AM
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Priority Date
:
Mar-05
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:
EB2
I140 Mailed Date
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India
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Labor Certification
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mrajatish will become famous soon enough mrajatish will become famous soon enough
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As I said, I talked to a very famous lawyer in the West coast and he thinks 140 PD is lost if your employer revokes it. He also thinks USCIS is not consistent in this and can very well still give you the original PD inspite of the 140 revocation. But as per law, only one PD per labor. So, if someone uses the underlying labor you cannot reuse PD.
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  #14 (permalink)  
Old 05-19-2006, 06:27 PM
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balu_g is on a distinguished road
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mrajatish, I found this in murthy.com's chat archive:-

Chat User : Thanks in advance! Can the priority date be transferred from an EB3 case to an EB2 case if the I-140 was approved under EB3?

Attorney Murthy : Yes, a PD from any earlier employment-based case is allowed to be transferred over to any other EB case in the future. So this is useful, but such a transfer of the PD is only possible after the I-140 petition has been approved in the earlier case, even if the employer later uses that earlier LC or revokes that I-140 petition for another employee when the employee leaves that employment! So it is useful to keep evidence of that earlier I-140 approval in your name to be able to request the transfer of the earlier PD for a future case!


http://murthy.com/chatlogs/ch100305_P.html

I have also read that somewhere in immigrationportal.com. I have to research on this. I will try reading 8 C.F.R. § 204.5(e), but this is little hard for me to comprehend. I will also ask my lawyer again. Have a nice weekend.
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  #15 (permalink)  
Old 05-21-2006, 06:36 PM
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Priority Date
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Sep-05
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go_gc_way is on a distinguished road
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Quote:
Originally Posted by balu_g
mrajatish, I found this in murthy.com's chat archive:-

Chat User : Thanks in advance! Can the priority date be transferred from an EB3 case to an EB2 case if the I-140 was approved under EB3?

Attorney Murthy : Yes, a PD from any earlier employment-based case is allowed to be transferred over to any other EB case in the future. So this is useful, but such a transfer of the PD is only possible after the I-140 petition has been approved in the earlier case, even if the employer later uses that earlier LC or revokes that I-140 petition for another employee when the employee leaves that employment! So it is useful to keep evidence of that earlier I-140 approval in your name to be able to request the transfer of the earlier PD for a future case!


http://murthy.com/chatlogs/ch100305_P.html

I have also read that somewhere in immigrationportal.com. I have to research on this. I will try reading 8 C.F.R. § 204.5(e), but this is little hard for me to comprehend. I will also ask my lawyer again. Have a nice weekend.

Please some one shed some more light on "B]even if the employer later uses that earlier LC or revokes that I-140 petition[/b] .. "

My previous labor is certified and I could not LC for I-140 application. LC was used for another employee. The other employee might even have filed I-485. Can I use the PD of that case for my current filing of GC process.

Thank you
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