pbojja
05-08 10:22 AM
If you are with same employer why cant you extend your H1 based on your first 140 approval (EB3 Labor Date: 01/21/2004 (Approved 02/10/2005)
I-140 Approved: 09/10/2005.) So that you can get H1 extension for 3 years .
You can also use EAD , but for some reason if your GC is denied (I wish it should not happen to any one) you will be out of status , In this case your H1 will be a life saver .
My suggestion is to get a 3 year H1 extension and hope that EB2 140 will be approved and interfile your 485 and you will be current.
These are absolutely my suggestions , Please talk to lawyer about possible 3 year H1 extension.
I-140 Approved: 09/10/2005.) So that you can get H1 extension for 3 years .
You can also use EAD , but for some reason if your GC is denied (I wish it should not happen to any one) you will be out of status , In this case your H1 will be a life saver .
My suggestion is to get a 3 year H1 extension and hope that EB2 140 will be approved and interfile your 485 and you will be current.
These are absolutely my suggestions , Please talk to lawyer about possible 3 year H1 extension.
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milind70
04-18 02:41 PM
Oh yes ! In that case, how about a one year extension ?
You can transfer but then you cannot port your old PD.For porting of PD you will need your 140 approval.
You can transfer but then you cannot port your old PD.For porting of PD you will need your 140 approval.
Ammulu
06-23 12:01 PM
Bump
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eb3_nepa
01-29 10:42 AM
I-485 Receipt Date Governs
Question 1. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?
It is the receipt date that governs. AC21 speaks in terms of the I-485 pending for 180-days or more. Applications are pending from the time they are filed with the USCIS. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. This makes a significant difference; particularly for many of the summer 2007 filers, since there were substantial delays in issuance of receipt notices.
Loss of Employment after Filing I-485, before I-140 Approval Risky
Question 2. I lost my job before the I-485 had been pending 180 days. Can I still use portability?
It can be attempted, and we have done so successfully in many cases. This is important for some summer 2007 filers, as some employers tend to conduct layoffs at the end of the year. For some, the layoffs came as they were approaching, but had not yet reached, the 180-day point.
One of the major concerns in a layoff situation is the I-140. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. The I-140 must remain intact until the I-485 reaches the 180-day point. See, our August 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. This issue is addressed in a USCIS memo discussed in our May 27, 2005 article, Yates May 2005 Memo on AC21 and I-140s, as well as our October 6, 2006 article, USCIS reissues AC21 Memo with Clarification. The risks are explained in more detail in the October 6, 2006 memo.
There are some key concerns in this situation. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case.
Never Worked for GC-Sponsoring Employer - Potential Fraud
Question 3. I never worked for my "green card" sponsoring employer. It was a future job offer. Can I use AC21 portability?
Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. Employment-based green card applications are all based on the concept of a future job offer. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. The best proof that a job offer is valid, however, is working for the sponsor. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The safe approach is to avoid this scenario by working for the sponsoring employer.
New Job Can be "Similar" but Differ in Some Respects
Question 4. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?
In our experience, yes. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The AC21 law uses the terminology "same or similar job classification." The June 2001 guidance refers us to the DOL system of occupational classification as a guideline. The later May 2005 Yates Memo makes the same references. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The DOL categories are generally fairly broad. In many situations, therefore, this does not present a significant problem. It is important to note that the duties generally govern, and not specific technologies, in most cases; though this could be different in a given situation.
Risk if Employer Revokes I-140 Petition before I-485 Pending 180 Days
Question 5. I am afraid that, if I change my job, my employer will try to harm my green card case. What are the risks?
This is, in part, addressed in Question 2. The employer does not control the I-485 application, since this is filed directly by the foreign national. The I-485 is based on the I-140, however, which is the employer's filing. The employer can always withdraw or revoke the I-140 petition. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still revoke the I-140 petition approval. This does not prevent the case from being approved, however. Under the August 4, 2003 Yates memo, an approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If a NOID is issued, a response must be filed demonstrating eligibility under AC21. If the file contains documentation about the new job, the case should just continue being processed.
Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. One of the primary potential problems arises if an RFE is issued. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case.
Sponsoring Employer Has No Obligation to Revoke I-140 after Employee Leaves
Question 6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?
No. Unlike the H1B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Thus, employers had a valid reason for revocation in some instances. Now, there is often no reason or need to revoke an I-140.
Question 1. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?
It is the receipt date that governs. AC21 speaks in terms of the I-485 pending for 180-days or more. Applications are pending from the time they are filed with the USCIS. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. This makes a significant difference; particularly for many of the summer 2007 filers, since there were substantial delays in issuance of receipt notices.
Loss of Employment after Filing I-485, before I-140 Approval Risky
Question 2. I lost my job before the I-485 had been pending 180 days. Can I still use portability?
It can be attempted, and we have done so successfully in many cases. This is important for some summer 2007 filers, as some employers tend to conduct layoffs at the end of the year. For some, the layoffs came as they were approaching, but had not yet reached, the 180-day point.
One of the major concerns in a layoff situation is the I-140. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. The I-140 must remain intact until the I-485 reaches the 180-day point. See, our August 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. This issue is addressed in a USCIS memo discussed in our May 27, 2005 article, Yates May 2005 Memo on AC21 and I-140s, as well as our October 6, 2006 article, USCIS reissues AC21 Memo with Clarification. The risks are explained in more detail in the October 6, 2006 memo.
There are some key concerns in this situation. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case.
Never Worked for GC-Sponsoring Employer - Potential Fraud
Question 3. I never worked for my "green card" sponsoring employer. It was a future job offer. Can I use AC21 portability?
Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. Employment-based green card applications are all based on the concept of a future job offer. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. The best proof that a job offer is valid, however, is working for the sponsor. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The safe approach is to avoid this scenario by working for the sponsoring employer.
New Job Can be "Similar" but Differ in Some Respects
Question 4. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?
In our experience, yes. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The AC21 law uses the terminology "same or similar job classification." The June 2001 guidance refers us to the DOL system of occupational classification as a guideline. The later May 2005 Yates Memo makes the same references. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The DOL categories are generally fairly broad. In many situations, therefore, this does not present a significant problem. It is important to note that the duties generally govern, and not specific technologies, in most cases; though this could be different in a given situation.
Risk if Employer Revokes I-140 Petition before I-485 Pending 180 Days
Question 5. I am afraid that, if I change my job, my employer will try to harm my green card case. What are the risks?
This is, in part, addressed in Question 2. The employer does not control the I-485 application, since this is filed directly by the foreign national. The I-485 is based on the I-140, however, which is the employer's filing. The employer can always withdraw or revoke the I-140 petition. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still revoke the I-140 petition approval. This does not prevent the case from being approved, however. Under the August 4, 2003 Yates memo, an approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If a NOID is issued, a response must be filed demonstrating eligibility under AC21. If the file contains documentation about the new job, the case should just continue being processed.
Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. One of the primary potential problems arises if an RFE is issued. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case.
Sponsoring Employer Has No Obligation to Revoke I-140 after Employee Leaves
Question 6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?
No. Unlike the H1B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Thus, employers had a valid reason for revocation in some instances. Now, there is often no reason or need to revoke an I-140.
more...
walking_dude
10-15 05:38 PM
I solemnly pledge on the Holy 'USCIS Field Officers Manual to Adjudicate Adjustment of Status Cases' that I shall actively support Immigration Voice ( IV for short) in all current and future Action Items.
Is it enough? :p
Is it enough? :p
shaq
02-14 08:48 AM
You have to pay NJ taxes with a credit from your payroll state tax. My wife works from NJ and her payroll is from MI. I paid MI taxes and took that credit to pay NJ taxes.
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bindas74
01-02 11:42 AM
No you can file for h1b extension only 6 months before expiry.
So get all your paper work ready and wait for 6 months time and then file early. By the way why do you want to apply 1 year in advance ? any particular reason ?
Hi ,
Thanks for the reply. I was just curious if we can apply 1 year before the expiry...since this post says so...may be he might have meant Nov, 2008 instead of Nov, 2007..
Thanks
So get all your paper work ready and wait for 6 months time and then file early. By the way why do you want to apply 1 year in advance ? any particular reason ?
Hi ,
Thanks for the reply. I was just curious if we can apply 1 year before the expiry...since this post says so...may be he might have meant Nov, 2008 instead of Nov, 2007..
Thanks
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n8900498
07-27 08:06 PM
I signed an employment agreement stating that if I had to leave my employer before getting my Green Card that I will be liable for all the fees pertaining to the Green Card application which my employer has been paying for while I am been employed by him.
I have heard that an employer cannot hold Green Card fees over an employee. I also believe if anything, the fees owing should drop according to the length of time that the employee has worked for that employer.
I have been with my current employer for 4 years now and I wish to leave him but I do not want to pay him for the Green Card fees as I believe that should be a business expense to him.
I would just like to know what are my rights in the above case
Best Regards
I have heard that an employer cannot hold Green Card fees over an employee. I also believe if anything, the fees owing should drop according to the length of time that the employee has worked for that employer.
I have been with my current employer for 4 years now and I wish to leave him but I do not want to pay him for the Green Card fees as I believe that should be a business expense to him.
I would just like to know what are my rights in the above case
Best Regards
more...
ssss
04-11 11:04 AM
My case was filed at TSC concurrently with a RD of july 29th and ND of sep29th. Nothing so far not even soft LUDs after sep29th
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roseball
08-27 01:08 PM
All thanks for kind comments.
@roseball - I am kind of surprise from your answer. I do not think it is possible currently(given economic situation) to post a job position and accept 0 applicants. Unless the job description has rare minimum requirements.
I agree that its impossible to not receive applications in this economy. However, the key to the process is how many of those applicants actually meet the advertised educational and experience requirements, possess the listed skills, and are willing to accept the employment terms. An applicant can only be declared qualified/dis-qualified solely based on the minimum job requirements as advertised. If an applicant meets all the requirements, then he/she has to be interviewed for the position. It definitely would raise a flag, incase a qualified applicant is not selected after the interview especially in this economy, unless the applicant rejected the job offer and even in such cases, the employer needs to show proof that an offer was extended and the applicant denied it.
@roseball - I am kind of surprise from your answer. I do not think it is possible currently(given economic situation) to post a job position and accept 0 applicants. Unless the job description has rare minimum requirements.
I agree that its impossible to not receive applications in this economy. However, the key to the process is how many of those applicants actually meet the advertised educational and experience requirements, possess the listed skills, and are willing to accept the employment terms. An applicant can only be declared qualified/dis-qualified solely based on the minimum job requirements as advertised. If an applicant meets all the requirements, then he/she has to be interviewed for the position. It definitely would raise a flag, incase a qualified applicant is not selected after the interview especially in this economy, unless the applicant rejected the job offer and even in such cases, the employer needs to show proof that an offer was extended and the applicant denied it.
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eb2dec2005
10-01 10:10 PM
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waitin_toolong
09-12 09:19 AM
You dont have to use EAD to change jobs it can be H1 transfer as well. But independent work authorization gives you more of a choice. What you will say is that you are authorized to work for any employer in USA.
So they dont need to sponsor you for visa or wait for any kind of approvals. With EAd on hand you can start work right this minute.
On resumes you can say Authorized to work for any employer.
Your wife is an EAD holder whether she uses EAD for work or not. Her status changes to AOS pending if she works. She can still use H4 stamp to reenter if it is valid. Although AP might be a good idea.
So they dont need to sponsor you for visa or wait for any kind of approvals. With EAd on hand you can start work right this minute.
On resumes you can say Authorized to work for any employer.
Your wife is an EAD holder whether she uses EAD for work or not. Her status changes to AOS pending if she works. She can still use H4 stamp to reenter if it is valid. Although AP might be a good idea.
more...
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priderock
05-16 12:07 PM
Thanks a lot to everyone for taking time to respond to my query.
I'm planning to appear personally at New York Indian embassy to clarify if they have any questions because the current passport was applied thro Tatkal service and I see a note (OBSERVATION: The validity of this passport should not be extended without prior reference to the office of issue) in the passport.
Would this cause any delay in issuing my passport ?
Thanks
I got my passport and my wife's passport from NY consulate. My wife's passport has similar endorsement I thought it would take longer to get her passport because of that endorsement. But it came 2 days later than mine. (all in 8 to 10 days)
Not sure we just got lucky. I remember to have read some where that renewal of all short validity passport takes longer because they need to get info from India. Is your regular validity or short ?
PS: I had observed that the tatkal passports (in India) are issued with 5 year validity only. If it is originally issues for 5 years they will just extend it to 10 and do not reissue a new passport.
I'm planning to appear personally at New York Indian embassy to clarify if they have any questions because the current passport was applied thro Tatkal service and I see a note (OBSERVATION: The validity of this passport should not be extended without prior reference to the office of issue) in the passport.
Would this cause any delay in issuing my passport ?
Thanks
I got my passport and my wife's passport from NY consulate. My wife's passport has similar endorsement I thought it would take longer to get her passport because of that endorsement. But it came 2 days later than mine. (all in 8 to 10 days)
Not sure we just got lucky. I remember to have read some where that renewal of all short validity passport takes longer because they need to get info from India. Is your regular validity or short ?
PS: I had observed that the tatkal passports (in India) are issued with 5 year validity only. If it is originally issues for 5 years they will just extend it to 10 and do not reissue a new passport.
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ujjwal_p
12-05 04:09 PM
Mine is EB2, India, PD 02/2002. Converted from EB3 to EB2.
Since you are very much interested in my story i'll tell you my GC Journey.
- 6 H1Bs (Since 2000)
- 2 LCs (One RIR in 2002, PERM in 2007)
- 1 45-day letter (in 2005)
- 2 I-140s (1 in 2006, 1 in 2007)
- 1 Layoff (in 2006)
- 1 I-485 (in 2007)
- 1 EB3 to EB2 converstion.
- 2 EADs (2007-08)
- 1 AP (2007)
- 2 Finger prints (2007-08)
- 5 SRs (4 no response, 1 useless response)
- 1 Infopass
- 2 Fax to NSC director with no response
- 2 letters to NSC director with no response
- 5 letters to congressmen and senators
- 1 letter to First Lady
- 1 response from FBI regarding name check.
- 2 Ombudsman enquiry (1 no response, 1 useless response)
- 2 responses from USCIS to congressmen enquiry (promising i'll get something before Oct 2008)
- 2 more followup enquiry to Congressmen (because nothing happend until Nov 1st week)
- 2 more followup response from USCIS (promising some status change before Nov 30th)
- 1 I-485 RFE (just before Nov 30th as they promised)
- Numberous phone calls to NSC
RFE received on 11/24, RFE response recd 12/01
12/04 GC approved.
damn dude, one helluva journey. congratulations.
may i add to the list : 2 green cards
this puts the immigration journey in perspective. after looking at ur list, have u thought about what to do with all the free time ull get now. i have one suggestion, keep lurking here and help out the other guys.
Since you are very much interested in my story i'll tell you my GC Journey.
- 6 H1Bs (Since 2000)
- 2 LCs (One RIR in 2002, PERM in 2007)
- 1 45-day letter (in 2005)
- 2 I-140s (1 in 2006, 1 in 2007)
- 1 Layoff (in 2006)
- 1 I-485 (in 2007)
- 1 EB3 to EB2 converstion.
- 2 EADs (2007-08)
- 1 AP (2007)
- 2 Finger prints (2007-08)
- 5 SRs (4 no response, 1 useless response)
- 1 Infopass
- 2 Fax to NSC director with no response
- 2 letters to NSC director with no response
- 5 letters to congressmen and senators
- 1 letter to First Lady
- 1 response from FBI regarding name check.
- 2 Ombudsman enquiry (1 no response, 1 useless response)
- 2 responses from USCIS to congressmen enquiry (promising i'll get something before Oct 2008)
- 2 more followup enquiry to Congressmen (because nothing happend until Nov 1st week)
- 2 more followup response from USCIS (promising some status change before Nov 30th)
- 1 I-485 RFE (just before Nov 30th as they promised)
- Numberous phone calls to NSC
RFE received on 11/24, RFE response recd 12/01
12/04 GC approved.
damn dude, one helluva journey. congratulations.
may i add to the list : 2 green cards
this puts the immigration journey in perspective. after looking at ur list, have u thought about what to do with all the free time ull get now. i have one suggestion, keep lurking here and help out the other guys.
more...
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H1bslave
10-26 04:36 PM
well yeah, you are on IV and you say bad words for IV then yes you get red. IV always had policy don't ask don't say just DO.
hey.. but I gave you green :)
Just with one post I got green turned to red. Some one is unhappy with commenting the core's opinion.
hey.. but I gave you green :)
Just with one post I got green turned to red. Some one is unhappy with commenting the core's opinion.
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tabletpc
12-12 10:04 AM
MUGWUMP,
Even my application came back yesterday as i ahd used simplified application. I ahve been told they don't accept simplified application any more in buffalo.
I now need to resend it using a regular application process....!!This process requires lots of documents...all i need now is patience to gather those doceumtns.
Even my application came back yesterday as i ahd used simplified application. I ahve been told they don't accept simplified application any more in buffalo.
I now need to resend it using a regular application process....!!This process requires lots of documents...all i need now is patience to gather those doceumtns.
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eb3_nepa
02-15 05:24 PM
Guys seriously SIGNUP for our very own Rally
http://immigrationvoice.org/forum/showthread.php?t=143
http://immigrationvoice.org/forum/showthread.php?t=143
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boreal
09-30 07:53 PM
Deleted
Got lot of red dots.. :-)
Nope, didnt get approval, but guess what, got my very first soft LUD on my 485 (didnt ever get one, not even after FP)..so i was maha excited that my 485 app itself has not been lost in the madness thats USCIS...
Got lot of red dots.. :-)
Nope, didnt get approval, but guess what, got my very first soft LUD on my 485 (didnt ever get one, not even after FP)..so i was maha excited that my 485 app itself has not been lost in the madness thats USCIS...
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tapukakababa
01-18 09:04 PM
my employer does not share the I-140 status with me...
black_logs
02-09 09:53 AM
Sobers, thanks for mentioning that, with immigration bill expected in March, it is expected that the fight will go on until June/July. All of us might have to open our Wallets again as projected expenses stands at $200,000 now
Great job guys!
We need to make sure our effort is complementary to the Innovation Bills in Congress. It will be a far easier, and achieveable ride...
We are ready to contribute more. Please let us know what the revised targets are. Does this firm work on a billable hour basis or a 'target-achievement' basis?
Great job guys!
We need to make sure our effort is complementary to the Innovation Bills in Congress. It will be a far easier, and achieveable ride...
We are ready to contribute more. Please let us know what the revised targets are. Does this firm work on a billable hour basis or a 'target-achievement' basis?
fromnaija
06-11 04:23 PM
The operative word in the sentence is "could" as opposed to "should". :) In any case, that's not the whole text. There is additional verbiage as to eligibility to file 485.
I also have the same text
“The above petition has been approved. The petition indicates that the person whom you are petitioning is in the United States and will apply for adjustment status. He or she could contact local INS to obtain form I-485."
and an A number!!!!
I guess, since it spells out that I can apply for adjustment status. We should go ahead and file i-485. They might accept the application who knows whether they changed the law internally or not.
I also have the same text
“The above petition has been approved. The petition indicates that the person whom you are petitioning is in the United States and will apply for adjustment status. He or she could contact local INS to obtain form I-485."
and an A number!!!!
I guess, since it spells out that I can apply for adjustment status. We should go ahead and file i-485. They might accept the application who knows whether they changed the law internally or not.
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