PD Can Be Carried Forward Even If Old I-140 Is Revoked (Unless Fraud or Misrepresentation) 5 November 2015

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This entry is now old law.  The new law is at http://www.immigration.com/blogs/i-140-ead-regulations-effective-17-janu... 

 

 

5 November 2015: After some flip flops, USCIS has gone back to allowing carry forward of priority dates even if I-140 is revoked by employer - as described in this discussion.  So, we are good for now.

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C. 

I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April  12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140.  USCIS has flip-flopped on this issue several times. 

Let me first bring you to the news.  Right here it says.  If you look at the question number two.  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.  So the idea here is this:  even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation. 

The history of this interpretation is strange.  A few years ago, this was the position.  USCIS always said you can carry the Priority Date forward.  A couple of years ago, they started saying, “No, you cannot.”  We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider.  I advise you to think about this very carefully.  You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it.  There’s  a whole lot of people who went through this.  File a motion to reconsider.  Then USCIS started saying, “Well, you cannot do it.”   

Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long.  So Congress said, “We’ll put in AC-21.”  That will make it easier for employees to change jobs without losing their Green Card benefits. 

This is excellent news, folks.  Once again, I am summarizing it for you.  You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation. 

One more thing I wanted to add.  This is not good for H-1.  Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions.  You cannot.  If you want H-1 extensions beyond six years, you’ve got to have something else going.  You cannot rely on the revoked I-140. 

That’s all I have to say on this issue.  I will speak with you folks soon. 

Thank you for listening.

Comments

Dear Rajiv,

Thanks for putting together so much information on the Green card process which is really helpful for people like me.

I am not sure if this question was ever asked.

How can I actually know if my I-140 was actually revoked because USCIS website shows it as still Approved? Can I file a Cap exempt H1B using I-140 and try my luck?

Some details to understand my question.

1.) Priority Date: July 2007
2.) EB2 I-140 approved in Feb 2009
3.) I moved to India in July 2009 as H1B 6th year extension got denied as my client refused to provide enough documentation for RFE. I had completed 5 years on H1B till then.
4.) Employer sent request to UCSIS for revocation of my I-140 in Feb 2011.
5.) Through FOIA in June 2016, I received the I-797C approval copy for I-140 and this CD also contained the copy of letter from my employer requesting I-140 revocation stating I am not available to accept permanent position. There were no other documents like USCIS response to my employer request that revocation is complete.
6.) Not sure if my I-140 was actually revoked at all because the USCIS Status check still shows my I-140 approved. And also the case history on USCIS website, there are no records w.r.t my I-140 after the approval date.

Please guide as what I should be doing. I would like to get back to USA on H1B and take advantage of my EB2 process. If possible get back to the same employer as it would save me from filing new PERM and I-140 again.

Thanks,
Ramesh

It is not possible to know for sure and online data may not be reliable for revoked cases. I think the case would have been revoked. My advice, Ramesh: it is certainly legal to try.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Thank you Rajiv ji for the response. If I take an USCIS Infopass appointment in New Delhi, Is there a way to know the accurate status of my I-140 case. Are they in a position to give me an up-to-date information. It is so confusing now as the online status still shows approved.

The only litmus test that I can think of is to find an employer who can file my H1B immediately referring to my I-140 and see if it goes through. This is an expensive way of finding out though. Don't know how to proceed. I want to make 100% sure that my I-140 is revoked before I put my H1B application in the next year H1B cap quota.

Thank you again for all the help.

Best Regards,
Ramesh

Dear Rajiv ji,

I did file an FOIA request in June 2016 and this is what I had received in the CD.

1.) I-140 application copy with Approved stamp.
2.) I-797C approval copy for I-140
3.) Letter from my employer to USCIS requesting I-140 revocation in 2011 stating I am not available to accept the permanent position.

There were no other documents in the CD like USCIS acknowledgement to my employer letter that the revocation is complete. If USCIS had maintained everything against my file, I thought they would also have attached the revocation letter in the CD as part of my FOIA request.

May be I could file another FOIA request to ask specifically for the accurate/current status of my I-140.

Thanks Rajiv ji for the prompt reply.

Ramesh ji, you can assume that the case was revoked, even if done late. If you need more confirmation, you may need to file another FOIA request.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Dear Rajiv ji,

As advised, made the FOIA request to know the current status.

Thanks.

Rajiv Ji,

I got PD approved last year. My job changed within the same company. Current employer wants to start another perm. I wanted to change my job during this time.

Can I port my PD to another employer if they start GC/ perm even though the current employer would have also restarted another Perm?

Also, based on the thread here I am reading, even if I leave current company, and they revoke i140, I still will be able to use my priority date to new GC? Am I correct ??

Hi Rio ji. Once I-140 is approved, priority dates are transferable because they legally belong to you. What the employers do should not affect that right. That should answer both your questions.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi Rajiv Ji,

I have I-140 with priority date FEB 2008 with employer A in EB3. Now have new I-140 approved with Employer B in Eb2 but it has aug 2014 Priority date. This was done in premium processing and they did not port my priority date.
One information to mention my old i-140 has a dob say 1972 different than new i-140 1973. SSN also have 1972.

My attorney says they have sent old approved i-140 to port the priority date. I have seen from your blog they search with Name, SSN and DOB to get the old priority date. Since the DOB is different did they not port the priority date. The reason for DOB is different in new I-140 is we need to give dob as per BC even if it is different than other docs passport. This dob 1973 was recently discovered as I need to get BC for 3rd stage.
Here are my questions.

1. If my attorney did not include old i-140 petition and did not mention Yes for Has any other immigration petition filed before - Part 4 , 6 question in I-140 form, can they still submit a service request to port the priority date now.
2. If my attorney included the old i-140 petition can they still raise service request for porting?
3. Will they not accept my old priority date due to dob mismatch as I am trying to correct my dob in other docs.
4. Can I correct my DOB in my old I-140?
5. I-140 says the approval notice sent to NVC - If they change the Priority date will they intimate the NVC again.?
I am worried as my PD feb 2008 may become current any time soon.

Please give suggestions.
Do you have services for filing consular processing?
Thanks Again

You need to correct or explain the discrepancies in the record, Lakshmi ji. This will get complicated. You need to set up a consultation and go over the whole case document by document. I am not sure what the extent of the problem is. If you need our assistance, you can contact us: http://www.immigration.com/contact

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Dear Rajiv Ji,

I currently hold the fifth year H1b visa (expire next July), and just got I-140 approved under EB3, priority date is Feb 2016. The legal team said they can't give me the PERM and I-140 receipt copy or number due to the firm's policy, unless I provide some good reason to our immigration department.

Please see my questions below:

1. I got another offer from company B and I plan to switch. The new company will sponsor green card and resubmit PERM application, they asked for my PERM or I-140 receipt number. First of all, can they transfer my H1b without those information? Secondly, If my boss is supportive of me leaving, is there a good reason to tell the immigration department?

2. If I switch to F1 visa while in the US and go to school, then find another job next year, can I still use my existing priority date to file I-485? -Seems that until now the government could keep the priority date even if I-140 is revoked. Do I still need to request any PERM/I-140 info from current firm before I leave?

Thank you so much for your help!

Best,

Ava

Ava, join the next free community conference call. Post your question there. I think you have several options. No problem.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

I had approved I-140 with employer A and I left A, and joined B and B filed I 140 and got I 140 approved with dates being ported from A; during this process, USCIS found A involved in kickback-bribery scandal; now will the I 140 Approved from B gets affected as the dates were ported from A

Impossible to predict. You should have your lawyers review the cases.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

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