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Porting of Priority Date with new employer

Discussion in 'I-140 petitions' started by gcseeker8, Apr 17, 2012.

  1. gcseeker8

    gcseeker8 Junior Member

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    hi,
    I know this question has been asked numerous times and you must be tired of replying.. but PLZ let me know one last time if I will have any problems porting my PD. I have an approved I-140 with a Priority Date of June 2010 filed under EB-3. (My present company is willing to start EB-2 application due to my recent promotion) However, I have a very good offer with another company who is also willing to start in EB-2.
    I am tempted to take the offer but obviously my main concern is I DON'T want to loose my PD of June 2010 under any circumstances.
    1. If I join the new company and my present company withdraws my I-140 is there ANY way my PD will be lost?

    2. The new company is willing to start a new labor & I-140 under EB-2 immediately upon hiring me and would request USCIS to port my old PD of June 2010. Do you foresee any problems with USCIS not porting my old PD?

    3. Say if my PD becomes current before my I-140 is approved, can the new company file I-485 concurrently? In my case since my old PD of June 2010 is for EB-3 category do I have to wait for I-140 to be approved or can I file concurrently?

    I hope you answer as it will help me relieve my tension.. thanks for helping me out.
     
  2. jesty

    jesty Junior Member

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    Re: Porting of Priority Date with new employer

    As your case is similar to mine, I took the liberty to answer your questions.

    1. If I join the new company and my present company withdraws my I-140 is there ANY way my PD will be lost?
    --Unless an approved I-140 is not revoked by USCIS due to fraud, you will retain the priority date. Withdrawing by your old company won't have any effect on porting.

    2. The new company is willing to start a new labor & I-140 under EB-2 immediately upon hiring me and would request USCIS to port my old PD of June 2010. Do you foresee any problems with USCIS not porting my old PD?
    --Should not be an issue

    3. Say if my PD becomes current before my I-140 is approved, can the new company file I-485 concurrently? In my case since my old PD of June 2010 is for EB-3 category do I have to wait for I-140 to be approved or can I file concurrently?
    --You can file I140/485 concurrently (provided your old PD is current). Prepare a nice cover letter. You need to have at least your old I140 receipt number for USCIS to verify your claim.

    Thank You!!
     
    Ron Gotcher likes this.
  3. gcseeker8

    gcseeker8 Junior Member

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    Re: Porting of Priority Date with new employer

    jesty,
    thanks for the clarification
     
  4. 0407

    0407 Junior Member

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    Re: Porting of Priority Date with new employer

    Hi,

    I have a related question. If the employer who filed I-140 goes out of business or say get acquired
    then, do I get to retain priority date when my next employer files I-140?
     
  5. gcseeker8

    gcseeker8 Junior Member

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    Re: Porting of Priority Date with new employer

    hi 0407,
    if your company that filed for I-140 gets acquired then the new company (successor in interest) has to file for an amended I-140 and you can retain your old PD. in my opinion that should hold true if your company goes out of business, but obviously you should be able to transfer your H1B with a new company.
     
  6. 0407

    0407 Junior Member

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    Re: Porting of Priority Date with new employer

    Hi Gcseeker8,

    My question was: Say My 140 gets approved via compnay A. I move to company B and start
    my GC again. By the time it is time for my I-140 from company B,

    (1)if Company A gets acquired, do I get to retain PD from I-140 from company A
    (2) if company A goes out of business do I get to retain priority date?

    I didn't get what you meant by "that should hold true if your company goes out of business"
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Porting of Priority Date with new employer

    There are two entirely separate issues here. First, when an I-140 is approved, the priority date is locked in and you get to keep it for all subsequently filed I-140 petitions (unless it is revoked for fraud or mistake). It doesn't matter if the company is sold or goes out of business after the I-140 is approved. You still get to keep the priority date.

    Second, if you need to use an I-140 in order to immigrate, and the petitioning company is acquired by another, then they must file a successor in interest petition on your behalf in order to keep it valid. If you are with another company, and using that company's I-140, however, you don't need for the first company to do anything.
     
  8. 0407

    0407 Junior Member

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    Re: Porting of Priority Date with new employer

    Thanks a lot Ron. So summary : one gets to retain priority date from I-140 filed by previous employer no matter old employer revokes it or goes out of business. Unless I-140 is revoked by USCIS for fraud/mistake PD stays
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Porting of Priority Date with new employer

    Correct.
     
  10. gcseeker8

    gcseeker8 Junior Member

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    Re: Porting of Priority Date with new employer

    Ron,
    Thanks for answering all questions. Really appreciate your help.
    Coming back to the one regarding retaining of old Priority Date (PD). When I change employers my new company will file for labor and new I-140. It is possible (I have seen it happen before) that the new I-140 might have the new PD. So then it's my (or my attorney's) responsibility that when my old PD gets current we send an I-485 application with my old I-140 attached and requesting USCIS to port my old PD and accept my application for I-485. However, it can happen that the officer is not aware of this "rule" and might reject my application saying that my new PD is not yet current.
    How should I handle it then? Because from what I understand this "porting" of old PD is not a "rule" but just a "guidance" to the officer which he may or may not wish to follow.
    many thanks in advance for your help
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Porting of Priority Date with new employer

    You are assuming that the person who handles your file will be ignorant of the law and unwilling to read what you provide. If you encounter that situation, there is little that can be done. Personally, I've never found that to be the case.
     
  12. shelly001

    shelly001 Junior Member

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    Re: Porting of Priority Date with new employer

    Hi Ron,
    As you said earlier, in case a company gets dissolved the PD still remains with the beneficiary and can be used for subsequent I-140 filing.

    However, can this approved I-140 from a dissolved company be used to get H-1 beyond 6 years, if a future employer sponsors the H1 but is taking time to file the PERM and I-140 ?

    Moreover, if a company dissolves in less than 180 days after filing for I-485, can the beneficiary still get the AC-21 Porability benefit, after 180 days of filing the I-485 by the dissolved previous employer ?

    Thanks.
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Porting of Priority Date with new employer

    If a company ceases doing business, all I-140s that they filed are automatically revoked by law. This doesn't strip the beneficiaries of their priority dates, but it does prevent them from using such an I-140 as an exemption from the six year limit.
     
  14. specifione

    specifione Junior Member

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    Re: Porting of Priority Date with new employer

    Hello Ron
    Can you please clarify bellow one:

    i have an Approved I140 with my Employer A. I joined Client last year, They started my GC processing(They agreed to port my I140). Can i go back to my previous employer A for GC processing,
    even after i got approved I140 with successful porting of OLD PD through client(In other words does old I140 still valid even after porting?).
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Porting of Priority Date with new employer

    Yes it is. It will remain valid as long as there is a continuing job offer and the petitioner has not revoked it.
     
  16. specifione

    specifione Junior Member

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    Re: Porting of Priority Date with new employer

    Thanks for reply..Yes my previous employer is willing to offer me employment if i wants to go back..that means when my date becomes current i will have option to apply for I1485 with either of approved I140(As both will have same PD)
     
  17. sdeshpan

    sdeshpan Member

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    Re: Porting of Priority Date with new employer

    Ron - I wanted to know if there is a limit on how long since the old I-140 approval can one wait to re-file and still capture the old PD. So say after getting a I-140 approved and a "locked in" PD, someone moves out of the US for 2 years and decided to come back, will they be able to still re0file for PERM and recapture the old PD? Or is there a limitation on the old approved application (and PD) expiring in some way?

    Thanks!
     
  18. sdeshpan

    sdeshpan Member

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    Re: Porting of Priority Date with new employer

    H
    Hi Ron - any info on this query? Thanks, much appreciated!
     
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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  20. sdeshpan

    sdeshpan Member

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    Re: Porting of Priority Date with new employer

    None of the links are working for me. Also, I am not sure if any of the existing resources the specific question I had about the time limit (if any) on how long after the initial approval of I-140 can a PD be recaptured. Can it be done after years, and even after some time spent outside of US and back in the country now?
     

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