I-140 EAD Regulations Effective 17 January 2017

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 The New I-140 EAD, etc. Regulations

2 December 2016

Radio Show Discussing Overview of the new I-140 EAD Regulations

2 December 2016

Discussing I-140 EAD FAQ in community conference call 

30 November 2016

Tomorrow, December 1, 2016, we will discuss some FAQ raised by the immigrant community. We have a free community conference call, every other Thursday at 12:30 PM EST. Call or Skype 202-800-8394. The details of the call are here: http://bit.ly/2dEdOzi. The questions The FAQ regarding the new regulations includes:

Extending H-1 after I-140 revocation, retaining priority dates under new regulations, per country limits, EAD under the new regulations, effective date of new regulations.

Discussion Topics, Free Community Conference Call (Every Other Thursday), 1 December 2016


FAQ: New I-140 EAD regulations -- Extending H-1 after I-140 revocation, retaining priority dates under new regulations, per country limits, EAD under the new regulations; effective date of new regulations; Visa cancelled CWOP, 214(b) denial; FAQ: Implications of joining an end client where H-1B employer objects, H-1B employer not paying salary - DOL Wage and Hour Division Complaint WH-4; AC21 green card portability, "same or similar" job under old/new regulations, working on 1099 as contractor; Frequency of visits and duration of stay on tourist/visitors/B-1/B-2 visa; Foreign Medical Graduates, Physicians, H-1B for part time jobs, concurrent cap and cap exempt H-1B employment.

Other: Consular processing green card through future employer; Can one start H-1B job before the requested start date? Court orders for migration of child by divorced parent; H-2B extension, denial, 240-day rule; Volunteering on F-1 OPT; Aging out; Name errors on green card; Humanitarian parole, H-1B change of status, etc.

Comments

Greentings.
Question1: I have a I-140 approved with PD 08/01/2010 from my previous employer. Now i joined a new employer where my PERM got just approved. Am i eligible for Priority date porting. I see on USCIS website my old I-140 is still in approved status not revoked status. Will the new regulations have any impact on porting the priority date?

Question 2: I have PERM approved currently my title is Principal Software Engineer & my current employer gave me a promotion to title as Direct of Software Development very minor change in job description. What are the options i have to accept the Promotion with current PERM?

The priority date is yours to keep, by regulation, after January 17. You have to refile from PERM if you are not covered by AC21 portability (I-485 pending 180 days).

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

I heard your community conference call for 1st December, you mentioned that even though the approved I-140 is withdrawn by previous employer after 180 days of approval we should still eligible for H1 extensions with new employer.

My question here is it required that new employer need to file labor and I-140 in order to apply extensions or I can just keep on applying for H1B extensions based on my first I-140 approval?

You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

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

Rajiv - Thank you for maintaining this blog. Follow up questions on your response:
1. Does the new job (with employer B) have to be same/similar to the previous job, at employer A, in order to get unlimited H1 extensions on approved I140 (older than 180 days) with previous employer A?
2. Even if I move to a third employer (say employer C) after employer B, can I still get H1 extensions on the I140 approved with employer A?

Thank you.

Please advise...here is my situation...

I completed 5 years 6 months of H1B Period. I have I-140 approved form (using Freedom act) with X consultancy Company and the Priority Date is December 2012. Recently I Joined in Y consultancy company on H1B transfer and will expire on May, 2017. Recently I came to know that X Company had withdrawn my I-140 Petition.

My Question is on what basis I will get the H1B extension after completion 6 Years on H1B? If not, Please let me know the other options.

Thanks
Praveen

You cannot get H-1B extension on an I-140 withdrawn before 17 January, when the new regulations kick in.

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

(i) Do we need to be in 365 days of priority date AND compelling reason to be eligible?
Or
(ii) anyone with approved I-140 in last 180 days but with compelling reason is eligible? So, for eg: My priority date is May 2012 and I have approved I140. If I have compelling reason, am I eligible for EAD?

Compelling reason EAD requires only that PD is not current.

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

Hi Rajiv,
My company filed for my AOS back in October 2015 and I am still awaiting for the date to become current with my priority date (05/08/2009).

I have couple of questions for you:
1: With new law, you mentioned that if 485 is pending for more than 180 days then one can get the new job or even promotion and keep the same green card process ==> Could you please clarify what kind of promotion on new job one can take? Should it still have similar job duties?

2: Currently USCIS site has 04/22/2008 as final action date. Do you have an estimate on how long it could take for the date to come to 05/08/2009?

Hello,

Coming Jan 17, the I140 EAD rule is coming to effect, assuming that there would be no changes in the final rule with respect to the final draft. My Questions is:

1) My I140 got approved in Oct 2016, after this rule is passed do I have to wait for 180 days after Jan 17 or will it be applied from Oct 2016 itself?

2) After completing 180 days if I change the company, can my wife get her h4 EAD extended based on the approved i140 (which will remain valid even if employer withdraws it)
----Her EAD is valid until Sep 2017 (before that I will apply for H1B/h4 extension)

Thanks

Which would be best options to convert from EB3 to EB2 asap.

Q1. 3 years Degree from India + 1 year Online UK MBA, will it qualify for EB2?
Q2. 3 yrs + 1.5 yrs US MBA degree, will this be eligible for EB2?

Do I need to wait another 2 years to become eligible for EB2 ?

Your lawyers can help you assess the best course of action, Raj ji. This cannot be a snap decision.

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

Hi Rajiv Ji,

I have an approved I-140 (EB2) from employer A. If i change to employer B, do i need to start my PERM & I140 again? or it is not required with this rule?
Thanks,
Akash

Even if I-140 is approved, under the new rule, you will have to start your green card again with a new employer, if you change employers.

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

My I-140 is approved in November 2014 and it was revoked by the employer in June 2016 when I moved to different employer. I have below two questions about my priority date and I-140..

-Can I use the previous priority date when the current employer files for Labor and I-140? Previous employer revoked I-140 already..
-Will I able to use the new I-140 rule ( I guess not ) for further H1B extension or Change of employer (the current employer yet to file for Labor)

Thanks

Hi Rajiv,
I have approved 140, Green card EAD/AP card in EB2 from company-A and passed more that 180 days. I have maintain H1b status since last 9 years instead of use EAD/AP as need to go India for marriage so my future wife gets H4 easily. Just transferred my H1b to company-B. Company-A will revoke my I-140 in March 2017 due to company policy. I have following questions to ask you.
1. Shall I get H1b extension (beyond 6 yr) in future with company-B after I-140 revoke from my previous employer?
2. I have EAD/AP card from my previous employer. Is it required to start GC process like labor and i-140 application again with company-B if my previous employer revokes my I-140?

I really appreciate if you can update me on my questions.

Thanks,

Salim, you can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was send more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:
1. Your I-140 is approved;
2. Your I-485 has been pending for 180 days or more;
3. You will take an employment same as or similar to your green card job; and
4. You file Supplement J.

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

Hi,

I have an approved I-140. My priority date is April 2011. Can I file for EAD on the basis of approved I140?

Any help is appreciated.

Regds.,
Richa.

No, Richa ji. The only EAD possible is a compelling circumstances EAD. This would not be a routine EAD. See the graphic on my blog.

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

Hi Rajiv,

I have approved I140 from 2010 BUT with current job market , there's hardly any corp2corp positions and companies are also not sponsoring H1, what does a H1 holder need to do in this critical situation? I read that getting I140 EAD will revoke H1B status and then cannot adjust the status through the I485 without going outside the country and getting back on H1 which is extremely risky. The other option is Consular Processing which is also waiting outside US.

What status would a person be if on I140 EAD due to a compelling circumstance like above? Is there a way to switch to H1 B so as to continue with Green Card through Adjustment of Status ( with same 2010 priority date) while within US?

I would very much appreciate your inputs.
Thank you,
Shaiiny

You information is correct. You will have to step out and get a new visa if you want to convert back to H-1, Shainy. No way around that.

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

Hi Rajiv. In my situation, I am on my 7th year of H-1B, with an approved I-140 since Mar 2013 (so about 4 yrs). Because i'm an Indian citizen under the EB-3 category, I am nowhere near current. I was recently laid off from my current job. My employer does not revoke and i am still technically under employment for the next 3 months as part of my severance.

My 2 main questions are:
1.) in this case, how much time do have to find another job?
2.) to what extent am i allowed to travel outside the US? Can I travel over the next 3 months, but not once my severance runs out?

Thank you

Hi,
I stayed with my last employer more than 6 months after I-140 was approved. My employer revoked I-140 but I can retain my priority date.
Now, I am filing I-140 again with new employer:
Q1. Will I have stay with my current employer more than 6 months after I-140 is approved to retain my (old) priority date?
Q.2 If I change job after I-140 is approved, my employer can't revoke it. True? Is there any period I need to be employed with current employer after I-140 is approved ?

Thanks,
Praveen

Under the law effective from 17 January 2017, an employee will retain their priority date once an I-140 is properly approved, even if a day later the employer asks for a revocation. There is no requirement that the employee be employed with that employer for a certain period of time.

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

Please don't post the same question in multiple locations. I have answered this elsewhere you have posted, Praveen ji.

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

Hello Rajiv,

My I-140 got approved on 11/2016 and i left the company in 12/2016 as i got full time offer.

Now after(more than) 180 days, in USCIS website, my I-140 case status got changed to "Correspondence Was Received And USCIS Is Reviewing It" , seems my employer send the withdraw notice.

As i left my previous company before 180 days rule, can i still use my PD and can apply for H1-B extensions after 6 years of stay? and can i file I-40 H4 EAD?.

Please suggest.

Thanks
Sandeep Arora

Rajiv,

I have my I140 approved in 2015under EB2 with Employer A.
I accepted a new job from top MNC(Employer B). But they are saying that they can apply GC under EB3 as per the policy. I still have my old I140 approved under EB2 with Employer A as active and they wouldn't revoke.
So if I accept the Employer B's proposal to file GC under EB3 and get I140 under EB3, Will I loose the ability to claim and apply I485 that the old Employer A's I140 under EB2 when the date becomes current.

Hello Rajiv sir,

My I-140 is approved in October 2016 through employer A, now I have an offer from employer B which I will be accepting and be getting my H1B transfer and extended. I know that I am not going to be with employer B for more than a year or two and I am anticipating that my priority (June 2015) date will not become current in this year or two that I will be working for employer B. Lets say after 2 years I got an offer from employer C (will use my approved I140 no from employer A for H1B transfer and extension) who is ready to sponsor my GC and will start PERM and I140 after a year of me working for him, does this 3 years of gap of me not having any employer sponsor my GC be a problem? Do I have to have some employer sponsor for my GC all the time or how much of maximum gap can I have between two employers sponsoring my GC.

(assuming current laws tied with employer based EB-2 GC sponsorship stays same for another 2 -3 years)

Thanks in advance for your time, help and advice. Appreciate it!

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