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Changing employer with approved I-140 (Before AOS i.e. NOT AC 21)

Discussion in 'I-140 job portability' started by immisurfer, Jan 25, 2014.

  1. immisurfer

    immisurfer Junior Member

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    Ron,

    I've been researching a lot on this topic lately and seems people and few attorneys are really confused with the thin line of difference with changing employers on approved i-140 before and after AOS. I have been going through your comments to other posts and few other posts from trackitt which made perfect sense. I am putting together a collated info Re this topic for your blessing.

    When working for Company A and I-140 gets approved and the employee wants to move to company B:
    - The employee can assume any role/designation/job description with company B (need not be same/similar)
    - The new employer will be able to use the existing I-140's PD to port the date and possibly to EB2 (if it was earlier in EB3 and the new job requires EB2 requirements)
    - Its good to provide the new employer with the copy of I-140 but the filing number will also help to port
    - New employer will need to file the PERM again before filing the new I-140 petition
    - Not mandatory to wait for 180 days with Company A after I-140 approval before moving on
    - All the above statements hold good before or after the initial 6 year H1B term

    When working for Company A and I-140 gets approved and I-485 (AOS) is also filed when the date was current. The employee wants to move to company B:
    - This is the typical AC 21 case and the employee needs to ensure the new job needs to be similar/same. USCIS determines this by job codes
    - The new employer will not be filing a new labor (PERM) which is why it is required that the new job be similar or same since the old PERM is being used
    - This move needs to take place only after I485 has been pending for 180 days when with company A
    - All the above statements hold good before or after the initial 6 year H1B term

    Please let me know if any statement is incorrect. You expert thoughts will be greatly appreciated. There has been a lot of confusion in these 2 cases which are the similar actions only taking place at different stages.

    Thank you.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It is a bit more complex that what you have written. Generally, if you change jobs or employers prior to 180 days after filing for AOS, you are out of luck and must have an employer file a new PERM/I-140 for you. You may keep your old priority date (provided your I-140 has been approved), but that is the only benefit available.

    If you switch jobs and/or employers more than 180 days after filing for AOS, you may keep your eligibility to immigrate, but you must stay in the same or a similar occupational classification.
     
  3. rookie

    rookie Junior Member

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    Hello Ron,

    I was browsing through this forum and found this interesting post. Thought of another complicated case regarding the same thread and am posting it here.
    In continuation with what immisurfer has posted regarding changing employers on approved I-140 and before AOS. Does approved PERM and I-140 from one employer mean that application for PERM and I-140 from second employer will also be accepted?

    In cases where 6 years of H1B has still not reached, there will be time to apply for PERM and I-140 again. Am I correct?
    However what will happen in cases where 6 years of H1B has already been reached where there is no time for PERM and I-140 applications.

    Thanks.
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Each application/petition is judged on its own merits. Approval for one employer does not mean that another employer will receive an approval. The same is true of denials.

    If someone runs out of time and cannot get an I-140 approved before their six year limit is reached, then they have to either change status or leave.
     
  5. kmshetty

    kmshetty New Member

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    I have an approved I-140 on Company A on EB2 Catagory. I joined company B with H1 transfer using approved I 140 from Company A, got approval for 3 years. Company B is not yet filled Labor for green card. Can I join Company C using Company A's approved I 140 and get the H1 transfer done or I need wait in Company B till I get my I 140 approved?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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  7. kmshetty

    kmshetty New Member

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    Hi Ron
    I read this through but could not find an answer to my question. Please advise.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    As long as the I-140 is not withdrawn before your new H is approved, yes you may use it.
     
  9. MohanK

    MohanK Junior Member

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    Hi Ron,

    I am having the similar questions posted on this post by 'immisurfer' which summarizes everything.
    So is it fine with 5th point under 'When working for Company A and I-140 gets approved and the employee wants to move to company B'
    i.e I can move out to new Employer after I-140 approval asap and I am fine with starting from PERM again.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Please read the article referenced above.
     
  11. Chandra_108

    Chandra_108 New Member

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    Hi Ron,


    I need your help for below situation.


    I am on H1 B in 9th year and 140 is approved with my current company. I got offer from new company and they are ready to file GC and H1 transfer in premium.

    My current company is going to revoke 140 as soon as I leave the current company.

    My question is if current company revoke 140 will I be able to use my PD with new company 140?

    There is some new about

    BIA Decision Brings Uncertainty to Priority Date Retention After I-140 Revocation

    Is this going to impact my PD on new company 140?
     
    Last edited: Jul 31, 2015
  12. bez

    bez New Member

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    The BIA decision you referred is not a precedent decision and only applies to the specific case in question. However USCIS could do the same to your new I-140 by not allowing you to keep PD from a revoked I-140. I wonder if your new employer is willing to start PERM process and submit I-140 before you resign from your current employer, so that your PD is ported before I-140 is revoked?
     
  13. Chandra_108

    Chandra_108 New Member

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    Thanks for the reply. I don't think my new employer would apply PERM and I-140 before I join them. So in this situation should I change the employer or continue with the current employer keeping EAD for H1 rule in mind and my priority is July 2010. Please advise.
     
  14. bez

    bez New Member

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    I just found this thread where Ron says: "That is an unusual decision and it is limited by its facts. This is what is known as a zombie precedent. It has been overruled by a federal circuit court decision, but still survives as a USCIS precedent. I very seriously doubt that this will be enforced."

    http://www.immigration-information....speculation-as-to-what-and-when.18086/page-83

    So sounds like you are likely able to retain your PD.
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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  16. Chandra_108

    Chandra_108 New Member

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    Thanks Bez and Ron, looks like I can retain my PD even after employer revoke I-140.
     
  17. Ratna Kumar

    Ratna Kumar New Member

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    Hi Ron,

    I have an approved I-140 (EB2-I 2011). I'm on my 7th term of H1B. Just got my H1 renewed until 2019.
    My AOS has NOT been filed yet. If I jump employers now, and the new employer initiates H1 transfer, would it also have an expiration date of 2019??

    Thanks...
     

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