H-1B: Switching Employers

[Luke Kolin]

[quote="nelsona"]If you submit your second I-140 before previous one is cancelled, then your PD will remain the same.[/quote]

In light of recent legislation, I am increasing skeptical that PD portability can survive an I-140 revocation. The INA as written states that the Secretary of DHS can cancel an I-140, and cancellation is legally treated like the I-140 never happened. Based on my reading, if the original employer gets annoyed and informs USCIS that they want the I-140 rescinded, then the original I-140 never happened - hence no PD to port.

Now there's no case law on the subject so I don't know how BIA or the federal courts would treat it, but that's what the law seems to say and I wouldn't want to be depending on porting the earlier PD from an employer who will withdraw the approved I-140.

Cheers!

Luke

[Jim Eiss]

There has been a recent amendment to the Adjudicatior's Field Manual that seems to contradict the plain meaning of the statute but is very favorable.

"(1) Determining the Priority Date.
In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification (see the section on successor in interest)."

AILA Doc. No. 06101910.

It would appear that CIS is saying the once an I-140 is approved, even if revoked (except for fraud) the priority date can be retained. We have been successful in these situations.

[worryfreeinvestor]

What exactly is a PD (priority date), why is it important, and who issues it (US CIS or DOL)?

[nelsona]

The PD is the date that one's Labor Certification, or later PERM, was submitted to state/DOL, or in cases whre no LC/PERM is needed, it's the date I-140 was submitted to USCIS.

USCIS establishes the PD when they receive your I-140.

The PD (aloang with your visa category) determine whether or not you can (a) file an I485 or request Consular processing on your GC, and (b) if your process can be approved, based on the current "cut-off dates" established every month by the State departmenti nthe so-called "Visa Bulletin".

For example the current cut-off date for EB3 GC appliants is August 2002. If your PD is after that date, you can't file I-485, or, if you have already file I-485, it cannot be approved this month. The Visa bulletin is updated monthly, based on quota, demand and throughput of GCs in each category.

[worryfreeinvestor]

Thanks very much for the very clear explanation.

[worryfreeinvestor]

When I look at the State Dept Visa Bulletin for November 2007, [url]http://travel.state.gov/visa/frvi/bulle ... _3827.html[/url], there are two boxes that show the PDs that are being processed. In the employment-based visa box, many of the cells simply have the letter "C" instead of a date. Any idea what that means?

[nelsona]

C means current, ie. no cut-off date.

There should of course be only one box that interests you: the one for your EB category and country of birth.

[Jaspal]

[quote="nelsona"]C means current, ie. no cut-off date.

Why does a PD move back and forth? Is PD not the date supposed to communicate, "we now have visa for everyone who filed their cases prior to this date...please send your papers for adjustment of status...". When someone files I-485 (when PD is current), and then soon thereafter PD moves back, he/she has to wait until PD is current again, for any further action on the filing.

[worryfreeinvestor]

Here's the message I just received from my firm's lawyer today. I'm guessing this is good news. Any bets on when my LPR will come through?

"Joe’s case has been approved by DOL. He was filed as EB-2. The priority date is September 18, 2007, however there is currently no immigrant visa backlog for his category. This means we can file the next step and the final step concurrently. I will send you forms for Sam’s signature, as well as contact Joe directly for his requirements. Thanks."

(Sam is my CEO.)