Form I-140

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

H-4 EAD Rule

Detailed question:

My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions <br> 1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently?<br> 2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?<br> P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=110

FAQ Transcript

As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

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Procedure for Porting a Priority Date from One I-140 to Another

Detailed question:

I have two approved I-140`s in EB-2 from two different companies with same A# on them. One with 2009 PD and other with 2011 PD. I am working for the company with 2011 PD . 2009 case was approved after the 2011 case so we could not port the date at the time of filing for 2011 case I-140. Now my question is do I need to file for amendment to port the 2009 date? Or am I eligible for filing I-485 without the I-140 amendment? Both I-140's are alive and employer did not withdraw any of them.

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=657

FAQ Transcript

PD (priority date) date transfer is supposed to be automatic. We don’t have to do anything about it and it is my understanding what USCIS does is they do periodic sweeps in fact several times a month. They do a sweep like queries of their database and whoever is entitled to whichever priority date at the earliest they automatically assign that to you. So if you have one I- 140 approved earlier another I-140 going on or approved they will automatically assign you the earliest priority date to which you are entitled. That may or may not reflect in your approval though. So just because it does not reflect in your approval it doesn’t mean that you are not going to get the earlier priority date. You can confirm it by opening a service request. You can confirm by asking them your priority date.

Hence the answer is you are eligible for filing I-485 automatically when the 2009 date becomes current. All you have to do is attach a copy of the earlier approval notice with it along with the current approval and you should be fine.

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Changing from EB-3 to EB-2 Category

Detailed question:

I have my I-140 approved under EB-3 category, even though I have Masters Degree from accredited US University. Can I change it to EB-2 now?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

FAQ Transcript 

The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

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Changing Jobs During Green Card

Detailed question:

I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?

Answer:

 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


FAQ Transcript

In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

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Using Obama's Immigration Action to Apply for AOS/EAD

Detailed question:

I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

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I-140 Revoked after AC21 Portability

Detailed question:

<b>From our community member </b><p> <b>Here is my Situation.</b><p> I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period. <p> In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country. <p> <b>My Question : </b> What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status. Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this? <p>You’re Suggestions/Comments please.

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

ANSWER TRANSCRIPT

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

- See more at: http://www.immigration.com/faq#sthash.DTqPrkHp.dpuf

First of all a company does not file labor or I-140. They are not going to do green cards.  

Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

What can you do?

In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

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Concurrent AOS filing for EB-2 Physical Therapist

Detailed question:

Is this true ? - "If the ‘Schedule A’ application falls into the “EB-2” or Employment Based Second Preference category (the employer requires a Master’s degree in Physical Therapy or a Bachelor’s degree in Physical Therapy + 5 years of experience), then the Adjustment of Status application can be submitted simultaneously with the Form I-140".

Answer:

Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.

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Obama's Immigration Action EAD At I-140 Stage

Detailed question:

I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.

Answer:

I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

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H-4 and I-140

Detailed question:

Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?

Answer:

Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

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Discrepancies In Date Of Birth Information

Detailed question:

Currently my I-140 is approved and now for the I-485 I need to present date of birth certificate. Problem is that DOB on certificate is correct and on all other documents including school, college, and passport and in all US records it is in correct. It started with wrong DOB in 10th certificate which was used in college, passport and finally all US documents. Now I went through all the channels and found the ways to change in passport and in all US documents. Question is what legal problems I should be prepared for and how it impacts my US records once it is changed. I am in US for last 7 years. I need to take decision on this as if it is worth doing it or just go back to India and may be forget about GC for this time. Really appreciate you taking out time for this kind of questions. Really appreciate you taking out time for this kind of questions.

Answer:
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
https://www.youtube.com/watch?v=xp4B1_qhvtM#t=863
FAQ Transcript
First of all you don't need to leave USA and go away and the question regarding should I forget about Green Card? No, not at all. What you do is when you file I-140/I-485 make sure you mention your correct date of birth. Try to get your documents corrected, if you cannot get corrected have your lawyers file affidavit explaining what happened. But always go with correct date of birth. Have we done this in the past? Yes we have. Have we had the problems? Little bit. We have to make sure that government understands it what the reason is and that we are just not being cute and trying to take advantage in some ways by creating the false identification. As long as government is convinced about that I usually see no further problems. So just don't give up, there should be detailed explanation, we should make attempt to make sure that you have corrected all the information about your date of birth on your passport, your school certificate. Whatever you can correct it, whatever you cannot correct document it. So, yes you do need your correct date of birth and because the documents for immigration in the United States are all filed under the Penalty of Perjury, your information must be correct.
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Do Not Have Copy of I-140 Approval Notice But Have Receipt

Detailed question:

I have my I-140 approved(in my 6th year of H-1). But my employer is not handing the approval notice to me. I have both Receipt Number and my Labor number (starting with A.). I have filed FOIA to get copy of I-140 approval notice. I wanted to know 1) Can I transfer my H-1 to another employer by just giving I-140 receipt number to them? 2) Can my new employer use this number to file my GC and keeping the PD based on this number?

Answer:

As long as your I-140 is not revoked BEFORE approval of H-1 extension/transfer, the receipt should be enough to get an extension with another employer. The priority date transfer is "automatic" and done at the USCIS level; that should not even need a receipt.

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I-140 for H-1B Extension

Detailed question:

I have a approved I-140 with on H-1B for more than six years working for company A. If I change to company B I will get 3 years of extension for new employer B. If I leave employer B before my PERM or I-140 is approved with employer B and join employer C. How many years of H-1 extension I will get ? Can I get 3 years of H-1 extension using approved I-140 with employer A.

Answer:

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers.

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers. - See more at: http://www.immigration.com/comment/13726#comment-13726
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Eligibility for I-140, Undocumented Dreamer

Detailed question:

I am part of the (Deferred Action), I started going to school in the US since I was 8 years of age and now I am 22, so I have been in this country almost all my life. I was working with Tax ID and of course my own name, I have built credit, invest, save, and spend wisely. I would always filed my taxes even though sometimes it would be a significant amount but I still wanted to keep my record as a good moral character who follows the law and keeps everything in order. I felt very blessed and was very thankful to God because he made a miracle that would help me stay in the US and work legally. The miracle was the (Deferred Action), I would of loved that the (Dream Act) was passed because It would provide me with a green card and be eligible for more federal and state benefits. I am currently enrolled in community college, Montgomery college pursuing my Associate's degree and then transferring to a 4 year university to obtain my Bachelor's degree and last but not least get my Master's degree. I am very goal oriented and I believed if you're a good person, good things will come to you. I apologize if initiated with my personal story rather than my question for eligibility for I-140. <p> Questions:<br> Based on my current status and my story, what are my options and how likely will I be approved for a I-140?<br> What are the factors that can impact the Homeland Security on their decision?<br>

Answer:

Unfortunately, there is nothing in the current law that will help you get your green card on your own. While an I-140 can be approved pursuant to employ-based green card process, ultimately, you will not be eligible for a green card because it looks like you have accrued unlawful presence of over one year after the age of 18. That requires either that you stay outside the USA for 10 years OR get a waiver through an eligible immediate family member (tough to get). Our best hope is for a change in the laws. Good luck!  

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I-140 Pending Approval

Detailed question:

I am currently on second year of my H-1B. My PERM is approved with a priority date of March 2013; I-140 is filed and pending approval. I am hoping this would be approved in July 2014. My question is I am planning to switch employer. Can I carry over my priority date with new employer? If so, are there any conditions like minimum period to wait after I-140 is approved to carry over the Priority dates to new employer?

Answer:

The priority date is yours the moment the I-140 is approved. There is no "cooling off" period. 

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Retaining PD

Detailed question:

Approved I-140 having PD December 2012 with company A. Currently on 6 year H-1B. Will be transferred to company B. I guess I will be getting three year extension with approved I-140. Can I retain old PD once GC process is started by company B, even if company A withdraw I-140 ?.

Answer:

Employees retain PD even if the old employer withdraws the approved I-140. PD is lost only if USCIS revokes I-140 for fraud/misrepresentation. Do remember, however, there is no right to H-1 extensions based upon a withdrawn I-140. 

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I-140 Withdrawal vs NOIR in AC21 Context

Detailed question:

A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my EAD/AC21: a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140? b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases? What are the measures I need to take in either case?

Answer:

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

You can just make sure the employer vigorously responds to an NOIR, if needed.

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Ability to Pay

Detailed question:

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence? 2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability? 3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status? 4. Why are prorated net assets not sufficient evidence to support ability to pay? 5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

Answer:

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

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Qualifying Degrees for EB-2

Detailed question:

What degrees qualify for EB-2?

Answer:

In June 2007, the USCIS clarified what is considered to be equivalent to a U.S. Master’s Degree for Employment-Based Category 2. Each petition and its supporting documentation are examined on a case-by-case basis and degree equivalencies are based on the evidence presented with the individual case. However, the below is provided as a general outline:

1. U.S. Master’s Degree – As long as it is in the field required, no additional document is required.

2. Four-year Bachelor’s Degree + two-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be considered the equivalent to a U.S. Master’s Degree and no additional document is required.

3. Three-year Bachelor’s Degree + three-year Master’s Degree (India) – With degrees in the same or related fields, this will generally be equivalent to a U.S. Master’s Degree and no additional document is required.

4. Three-year Bachelor’s Degree + one-year postgraduate diploma + two-year Master’s Degree (India) with degrees in the same or similar field - This would generally be considered the equivalent of a Bachelor’s Degree plus one additional year of education. Therefore, the beneficiary would also need to have five years' progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree and there would be no need to establish five years' progressive experience.

5. Three-year Bachelor’s Degree + two-year Master’s Degree (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference (EB-2) category. 

6. Three-year Bachelor’s Degree + two-year Master’s Degree (India) + five years' progressive, post-Master’s Degree experience – Generally, the educational degrees would be determined to be the equivalent of a U.S. Bachelor’s + one year and the beneficiary would meet the statutory requirement.

7. Three-year Bachelor’s Degree + two-year Master’s Degree + one-year postgraduate diploma (India) – Generally, this would be the equivalent of a Bachelor’s Degree + one year and would require five years' progressive experience to qualify under the 2nd preference category (EB-2). If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the three-year Bachelor’s Degree or the two-year Master’s Degree, it is possible that this would be considered the equivalent to a U.S. Master’s Degree, and there would be no need to establish five years' progressive experience.

The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty. The post-baccalaureate experience should reflect increasing or advancing levels of responsibility and knowledge in the specialty. The profession should be an occupation for which a baccalaureate degree or its foreign equivalent is the minimum requirement for the entry in the field.

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I-140 Successor-in-Interest

Detailed question:

Is any action required when an I-140 sponsoring employer undergoes acquisition, merger, or restructuring?

Answer:

If the I-140 petition is still pending, then USCIS needs to be notified in writing of the change. If the I-140 is already approved, then an amendment needs to be filed by the successor-in-interest petitioner. Note that the successor-in-interest petitioner must take over the rights and liabilities of the earlier petitioner, including the immigration matters. Successor-in-interest cases can be tricky and generally need to be addressed by an attorney. For additional details, please see the attached USCIS memo from August 2009.

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Multiple I-140 Approvals and Linking to I-485

Detailed question:

When there are multiple I-140 approvals, how do you link the appropriate approval to the pending I-485 petition?

Answer:

If an I-485 is already pending, a newly approved I-140 can be linked to it by sending a written request to the USCIS. Include all information and relevant copies to clearly explain the transfer of the I- 485 petition to a different I-140 approval.

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I-140 Expedite requests

Detailed question:

What is the process for I-140 expedite requests?

Answer:

Expedite requests are received through the USCIS NCSC customer service number. In cases of emergency where an AP is required, an INFOPASS appointment will be made possible at the local office. Usually, for expedite issues on I-485 applications for religious workers, the biometrics takes about 14 to 30 days. The lockbox, on the other hand, takes seven to ten days to issue a receipt. There is a sweep to bring up possible cases every two weeks.

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I-140 Petition and Inability to Pay

Detailed question:

What is the process for responding to USCIS’ concern about inability to pay in an I-140 petition?

Answer:

According to USCIS, a letter is acceptable from a financial officer validating 100 employees and ability to pay. However, further information can be requested in case there are other reasons that show an inability to pay. Please keep in mind the employer in the RFE should be given the reason for the request. It is also important to know that USCIS might take the letter from the financial officer due to discretion.

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Premium Processing not available to multi-national executives and managers

Detailed question:

Why is Premium Processing not available to multi-national executives and managers? To exclude this group of aliens seems arbitrary and counter-intuitive.

Answer:

USCIS has not yet finalized the system and has not announced when it will begin.

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I-140 Evidence for Ability to Pay

Detailed question:

What kind of evidence is acceptable to show ability to pay wages in an I-140?

Answer:

The regulations state that for ability to pay wages, USCIS will accept copies of annual reports, federal tax returns, or audited financial statements. If the employer has more than 100 workers, a statement from a financial officer of the organization can be submitted to establish the ability to pay the proffered wage. Additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted and will be considered at the adjudicator’s discretion. Additionally, USCIS has verified that consolidated financial reports of a parent company in which the sponsoring employer is a subsidiary can be considered by adjudicators to evaluate petitioner's ability to pay wages. As these reports tend to be lengthy, employers should tab the relevant pages for adjudicator’s reference.

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Green Card through Consular Processing with Approved I-140

Detailed question:

Question 1. I have done MS from US and worked on H-1 for 5 years. Started GC process, I-140 approved with Priority date May 2011. Came to India for H-1 stamping and it was denied twice. If I apply for my H-1 and if I don't get H-1, then can my employer continue processing my GC through Consular Processing when I am in India. Also is there any law stating that my employer can not keep the I-140 when my H-1 has been expired & if it so then for how long can my employer keep my I-140 active? Question 2. If my employer revoke my I-140 & if I come to US on any other visa, then Can I process my GC and port the PD ?

Answer:

Answer 1. As long as the job offer exists and the employer is capable of paying the wages, the green card process can go on, even though you are not in USA. You should discuss this matter in detail with your lawyers to better understand the implications. Also, I-140's do not expire.

Answer 2. PD can be ported even if the 140 is revoked by employer. I have a video on this issue 

http://www.immigration.com/media/form-i-140/priority-dates-can-be-carrie...140-revoked

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I-140 Petition Through Premium Processing

Detailed question:

Should I file my I-140 petition through regular processing or premium processing?

Answer:

Currently USCIS is accepting premium processing for certain I-140 categories. In addition to the regular filing fee, there is an additional $1,225.00 filing fee to upgrade to premium processing. If an I-140 is filed with premium processing, USCIS will issue a determination or an RFE within 15 calendar days.

Typically, these are some of the reasons when an I-140 should be filed through premium processing:
1) When an I-140 approval is needed to extend H-1 beyond the 6 years. Please see Rajiv’s blog entry for more information:
http://forums.immigration.com/entry.php?214-Obtaining-H-1-Extension-beyo...

2) If you would like to know the outcome of the I-140 as soon as possible.

3) When the priority date is current and the I-485 could be approved quickly.

4) When requesting priority date carry-over from a previously approved case and would have a current priority date when the new I-140 is approved. This would allow the I-485 to be filed faster.

Typically, these are some of the reasons when an I-140 can be filed through regular processing. To find out the current USCIS processing times, please visit:
http://www.immigration.com/processing-times-and-status-checks

1) If the priority date is not current, and therefore I-140 approval doesn’t benefit the applicant in any way.

2) If any evidence is not available at the time the I-140 is filed, and would be available in the next few months. Examples include:
a. Financial information from the employer – if the latest tax returns are required to show ability to pay and the company has not yet filed. By the time the I-140 is reviewed and an RFE issued, the company would have had time to prepare and file the tax returns.
b. Experience letters – if there is a delay in getting the letters from previous employers. The employee would have several more months to acquire the letters by the time the USCIS issues an RFE.

Additional points to keep in mind when deciding to file regular processing or premium processing:
1) It is commonly believed that an I-140 filed under premium processing will receive additional scrutiny by USCIS. In our experience, this is not true - all I-140’s are reviewed the same way and issued an RFE if USCIS requires additional information or evidence.
2) An I-140 filed under regular processing can be upgraded to premium processing even after regular filing. The 15-day processing time starts when the request for upgrade is received.

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Premium Processing Availability for Second I-140 Filing

Detailed question:

When a second I-140 is filed, is Premium Processing available?

Answer:

When a subsequent I-140 is filed by a successor-in-interest, USCIS can accept the Premium Processing request only if it has access to the original ETA 9089 PERM Approval.  If the USCIS cannot get access to the original, the Premium Processing will be rejected. 

To upgrade an I-140 filing that is in regular processing, the applicant must submit the I-907, the appropriate filing fee, and a copy of the I-140 Receipt Notice to the USCIS Service Center that has the I-140 petition pending.  If there is an attorney representative on the I-140, a G-28 must also be submitted.

 

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Online Master's Courses for EB-2 Filings

Detailed question:

Is an online Master's course acceptable for EB-2 filings?

Answer:

USCIS has verified that an online Master's course can be acceptable for EB-2 Green Card filings, provided that it is from an accredited U.S. university. 

Click here for Rajiv Khanna's blog entry on this topic.

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Proving the Ability to Pay Wages

Detailed question:

What is ability to pay wages and how do employers prove to the USCIS that they have the ability?

Answer:

At the I-140 stage, USCIS requires documentation that the employer can afford the employee's proffered wage and will be able to continue doing so in the foreseeable future.  In this regard, employers must prove that: (1) the employer’s taxable income is equal to or greater than the proffered wage; or (2) the employer's net current assets are equal to or greater than the proffered wage; or (3) credible verifiable evidence that the employer is not only employing the beneficiary but also has paid, or is currently paying, the proffered wage.

For categories requiring labor certification, documentation must establish employer’s ability to pay employee’s wage from the date of filing the labor certification.  On the other hand, for categories not requiring labor certification, ability to pay must be established as of the date of filing the preference petition (such as Form I-140). 

USCIS requires strict compliance with these rules.  Consequently, cases in which the priority date is established by filing the labor certification, USCIS will reject the petition if the employer lacked the ability to pay from the date of filing.  There are no exceptions to this rule.  The rationale for this view is that an employer must make a realistic job offer at the time of filing the labor certification, and an inability to pay the proffered wage at that time means that no realistic job offer existed in the first place.

Establishing Ability to Pay Proffered Wage

USCIS uses three tests in determining an employer’s ability to pay.  Any of these tests, if satisfied, conclusively demonstrates ability to pay.

  1. Net Income Test: This is the standard test used in determining whether “the petitioner’s net income is equal to or greater than the proffered wage.”
  2. Net Current Assets Test: If the employer’s financial reports indicate net losses, it can still demonstrate ability to pay by submitting evidence indicating that the “petitioner’s net current assets are equal to or greater than the proffered wage.”  In this regard, net current assets have been defined as “a corporate taxpayer’s current assets less its current liabilities.”  Current assets include liquid cash, inventories, and receivables converted to cash within one year.
  3. Actual Payment Test: This test determines whether the “petitioner not only is employing the beneficiary but has also paid or is currently paying the proffered wage.”  This test is based on the assumption that if the employer has been paying employee’s wages in the past, then he will continue doing so in the future.

Employer’s ability to pay can be established by copies of audited annual reports, federal tax returns, or audited financial statements.  Additional evidence such as payroll records, W-2 forms, profit/loss statements, bank account records, or personnel records may also be requested by USCIS to verify ability to pay.  The most important document that USCIS requires in order to verify a net income sufficient to cover the employee's proffered wage is the corporate or business tax returns for the year starting when the labor certification was filed.

Furthermore, if the employer’s business is running at a loss, then evidence that the employee was already working for the employer at the time of filing the labor certification and that employer was able to cover employee’s proffered wage during this time can be important in establishing ability to pay.  That the employee’s proffered wage was paid even though the business was running a loss may not be persuasive evidence, however, unless the employer can produce evidence indicating that the company has since become profitable. 

The net income test is an onerous one, particularly given the propensity of most businesses to minimize net income for tax purposes.  When net income will not cover the proffered wage, however, the employer must substantiate his ability to pay in other ways, including market research studies showing the potential for future profitability or the availability of substantial investment capital from a parent company or new investor.  Significantly, however, courts have upheld USCIS’s decision to solely consider the federal tax returns for the year of filing the labor certification without regard to additional evidence.

USCIS may accept a statement from a financial officer of a medium or large employer, defined as any organization employing over a hundred (100) employees, evidencing the employer’s ability to pay, and this may serve as a substitute for other documentation such as federal tax returns.  For large employers, a statement from the financial officer and a copy of the organization’s annual financial report can be useful in establishing ability to pay.

Specific Factors Considered by USCIS

In evaluating an employer's ability to pay, USCIS employs the following guidelines:

  • When the employer hires several employees, the ability to pay must be established for the beneficiary, as well as all other employees, for whom a petition (both immigrant and non-immigrant) has been filed.
  • When the employer's taxable income is at least as large as the proffered wage, USCIS generally assumes employer’s ability to pay.
  • When the employer's taxable income is negative, or less than the proffered wage, and the employee is not already working for the petitioner, but the employer's balance sheet shows a sufficiently favorable ratio of total current assets to total current liabilities, USCIS generally assumes employer’s ability to pay.
  • When the employer's tax return shows a taxable income before net operating loss, and a net operating loss deduction followed by taxable income, USCIS considers the taxable income before the net operating loss number to evaluate ability to pay.
  • If the employer is a sole proprietor, USCIS will consider the sole proprietor's personal assets and liabilities in adjudicating the ability to pay.
  • If the employer asserts that the hiring of the beneficiary will cause the employer's income to increase, and that beneficiary will be paid from that increased income, USCIS will consider whether the employer has made a credible argument based on the projected figures (such a contention does not automatically overcome the problem of a presently unprofitable company).
  • A positive retained earning does not automatically lead to favorable finding regarding ability to pay.
  • Depreciation can be added to the taxable income and USCIS will consider the sum of these two figures to evaluate the ability to pay.

USCIS also advises employers to provide an explanation in the company support letter as to how the evidence demonstrates an ability to pay.  The employer should highlight the relevant figures and explain these figures, if necessary, by using the guidelines listed above.

Ability to Pay Wages - Examples

A)    The employee has been working with the sponsoring employer since 2007, earning a salary of $80,000 per year.  The labor certification was filed 06/01/2008 with a proffered wage of $79,000.  As the employer is already paying the proffered wage to the applicant, ability to pay wages has been demonstrated.

B)     The employee has been working with the sponsoring employer since 2007, earning a salary of $60,000 in 2007, $70,000 in 2008, $80,000 in 2009, and $90,000 in 2010.  The labor certification was filed 02/20/2007 with a proffered wage of $80,000.  The employer paid a salary to the beneficiary equal to or exceeding the proffered wage in 2009 and 2010.  Therefore, in 2007 and 2008, since the employer has not paid the proffered wage to the applicant, the employer must be able to show ability to pay the difference in the wage.  In 2007, the employer must show at least $20,000 net profit or net current assets in their federal tax returns to show ability to pay wages.  In 2008, the employer must show $10,000 net profit or net current assets to show ability to pay.

C)    The employer sponsored a green card for a future employee who is not currently working with the company.  The labor certification was filed in February 2008 with a proffered salary of $70,000.  Then the applicant joined the employer in April 2009 and earned a salary of $50,000 in 2009 and $70,000 in 2010.  Therefore, for 2008, the employer must show the full amount of $70,000 in their net profits or net current assets to show ability to pay wages.  Then for 2009, the employer has to show only $20,000 net profits or net current assets to show ability to pay wages for 2009.  For 2010, ability to pay wages has been met based on the salary paid.

D)    The employer filed five green cards in 2009 for five employees.  Each employee was being paid $60,000 and each green card had a salary of $75,000 as the proffered wage.  Therefore, the employer must be able to show $75,000 [($75,000 - $60,000) * five employees] net profits or net current assets in the 2009 federal tax returns.

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Spouse of an O-1 - next step to Green Card

Detailed question:

I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

Answer:

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

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Can I process I-140 with previous company

Detailed question:

I got I-140 cleared through current company and labor approved from previous company. Can I process I-140 through previous company (to get PD to 2008)?

Answer:

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

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Can approved I-140 be revoked?

Detailed question:

My current employer has filed for my greencard. My I-140 was approved last year. I have 2 more years on my H-1B. I want to change employers and want to know whether: My current employer can revoke my I-140 for changing companies? Even if they do so, can I maintain my Priority Date?

Answer:

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

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Switching Jobs after I-140 approval

Detailed question:

I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12, 1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)? 2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

Answer:

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

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H-1 extension beyond 6 years

Detailed question:

My situation. I work for company A 1. My 6th yr H1-B ends in Dec 2011 2. Labor approved (PD May 2010) and I-140 (applied Sep 2010) pending - EB3 3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014). After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).

Answer:

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

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Can I change jobs and file PERM and I-140 under EB-2

Detailed question:

Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My PD is Feb 2007.

Answer:

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

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Job Change after I-140

Detailed question:

I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

Answer:

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

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Can my employer file a I-140 after I quit or he terminates me?

Detailed question:

I am currently employed on a H1B visa ( 7th yr extension). My employer had applied for Labor back in Jan 2009 but it hasn’t yet been approved. my employer now intends to terminate my employment by the end of the year ( lay offs/ I could quit voluntarily ) Can they still file for a I-140 ( based on a future job offer)? I would like to maintain my priority date. Also can a prospective employer file for a H1B extension based on a pending/approved labor after I no longer work for the current firm?

Answer:

Both things are possible as long as the I-140 is filed in good faith. I have doubts about the I-140 approval if the job ceases to exist even temporarily.

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Approval of I-140

Detailed question:

My I-140 has been approved. My company is working on the getting the green card done. My question is can I quit my job with my current company and get a job in a new state and a new company? Does this affect the status of the green card application. Any idea of how long will it take after this step.

Answer:

CHANGING EMPLOYER WITHOUT I-140 APPLICATION
If a person changes employers without ever applying for I-140, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer.

WHAT IF I-140 IS DENIED
The PD cannot be transferred

CHANGING EMPLOYER AFTER I-140 APPROVAL

If a person has received an I-140 approval through an employer, the priority date then belongs to him or her, unless the I-140 is revoked for reasons of fraud. The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

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Out of Status

Detailed question:

How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

Answer:

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

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Importance of having continuity of employment/pay stubs

Detailed question:

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Answer:

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

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EB3 to EB2 and I-140 Refile

Detailed question:

I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Answer:

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

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Use of priority date

Detailed question:

I am on an H1B Visa and my wife is on H4. She is about to finish her nursing school. My I140 is pending along with both our 485's. My question is.. if my wife finds an employer who is willing to file an I140 for her can we use my priority date and the already applied I485's to get the green card? My priority date is sept 2001. EB3.

Answer:

Your wife cannot transfer your priority date to her case.

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H1 6th Yr - Labor Approved - NO I-140

Detailed question:

My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Answer:

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

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I-140 Denied

Detailed question:

My I-140 got Denied on Aug 17 on Ability to pay after a RFE.Reason for Denial is "Employer had filed more than 30 cases since sep 2008, and company's net Asset $4M(approx) AND Liablity $2M (approx) and so the net "LIABILITY" is $1M (4-2=1 but they have calculate as -1).30 cases with $1M libality is not sufficient to support this Immigrant , company needs more than $3M to support 30 cases. The truth is (as per my employer) that we have filed 29 cases since 2006 and not sep 2008 also company has more funds and the numbers 4M and 2M are incorrect.What can be done ?

Answer:

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

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Current USCIS procedures for PD transfer and AOS

Detailed question:

Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file 1.EB3 PD,2002 2.EB2 PD,2005. They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now. Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

Answer:

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

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AC-21 Ability to pay

Detailed question:

I have changed employer using AC-21. I-140 appoved - Jan'09. I-485 filed July 2007. PD June 2007, EB-3 ROW. My previous employer will not withdraw my approved I-140. I am current working on EAD with my current employer. My current employer filed for Bankruptcy under chapter 11. Do you think I might have an issue of ability of pay when I renew my AP and EAD. Thank you in advance for your help.

Answer:

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

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I-140 application, experience certificate

Detailed question:

I am asked by my lawyer to obtain experience letters from my 2 previous employers in their letter head and signed by someone from HR. Is this something that is required for the application of I-140?

Answer:

In my view, these letters should be obtained BEFORE the PERM application is even started. It can be one of the required and key pieces of evidence in I-140. But the preparation to deal with this issue has to be made even before the PERM application is drafted.

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I-290B AAO Process case online status question

Detailed question:

I am looking for your advice here, my online case status for denied I-140's appeal I-290B as "The I290B NOTICE OF APPEAL TO THE COMMISSIONER was transferred and is now being processed at a USCIS office." this status is there for past 19 months with no further updates, recenetly opened SR recieved response saying my case is pending at AAO office in washington, which one is correct,Is my case transfered back to USCIS or still with AAO any idea. is there anyway to expedite my denied/appeal I-140 I am on 7th year H1b extension. Incase appeal denied what are the options I have.

Answer:

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

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I-140 may get revoked. What happens to priority date?

Detailed question:

This is regarding my husband. My Husband's GC is filed through Employer A. His LC & 140 got approved. We did not file 485. He recently got a good job opportunity and transfered his visa to Employer B. We have priority date of Nov 2007 in EB2. But Employer A may revoke the 140 as my husband is no longer an employee of company A. We do have the copy of approved 140 with us. Employer B is wiling to start his GC process this year. Can we port the old 140's priority date even though the original 140 is revoked? Will it be lost if approved 140 is revoked?

Answer:

The old employer can withdraw I-140, but the applicant will still be able to retain the Priority Date.  Please review the latest information on this topic:  Priority Date Can Be Carried Forward Even if Old I-140 is Revoked (Unless Fraud or Misrepresentation) –July 7, 2012

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Obtaining H-1 Extension beyond 6 years

Detailed question:

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

Answer:

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

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RFE after the I-140 was approved

Detailed question:

1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can USCIS go back and raise RFE's in this manner? 2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?

Answer:

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

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H-1 Extension based upon spouse's 140; Child born in USA

Detailed question:

Answer:

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

Ans. No other way.
 

Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.
 

Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

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USCIS Finally correct 140 Premium Policy

Detailed question:

Answer:

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

 

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Multiple I-140 filings

Detailed question:

Our community member spring09 says: Hi Rajiv, Thanks in advance. I have an question and keeping me up during nights. I am working on H1 with comp A, who has filed for my I-140 in Feb-08. And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B. Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140. Thanks again.

Answer:

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

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GC future job; H-1 ext. revocation upon 140 denial, etc

Detailed question:

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Answer:

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

 

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Employers and Employees -- H-1 or EAD?

Detailed question:

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

Answer:

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

 Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

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CIS Reinstates Limited I-140 Premium Processing

Detailed question:

Answer:

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
3. You are not eligible to receive 1-year H-1 extensions because your labor certification was filed less than one year ago.

FAQ

Question 1
Can we file I-140 PP if:
A) The applicant is in 7th, 8th or 9th year extension? If yes, do we have to wait until 60 days before the current year expires or can we file at any time?
Answer No. Because you fail the 3rd condition. You ARE entitled to receive one-year extensions of H-1.

B) The 6th year has already expired because there was no way to extend H1 at that time and the I-140/I-485 are currently pending? Applicant is on I-485 Pending status.
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

C) If the 6th year already expired and the applicant transferred to another non-immigrant status (for example, F-1) because could not extend H1?
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

See attached copy of the letter sent to CIS.

Addendum 02/27/09
In February 2009, CIS expanded the premium processing to include those people who are not in H-1 status currently or are out of the US. Rest of the requirements are the same. Typical of their style, the public notice was confusing and singularly useless in providing accurate guidance. Note that we had pointed out this problem to USCIS back in June 2008. See attached letter. It took them only 8 months to (partly) fix it.
 

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If I-140 gets revoked/denied does my H-1 extension get canceled?

Detailed question:

Answer:

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

I really want to thank and appreciate the good work you and your team is doing.
I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
My question is if my present employer lays me off and terminates my H1,
1. Can apply for H1B transfer to other company?
2. Will I be consider out of Status under any condition?
3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

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Expected I-140 denial

Detailed question:

Thanks in advance for your help. My current situation is this : 1. Applied for I140 and received RFE 2. RFE requires Employer's 2007 tax document and my recent W2 3. There is a salary difference in W2 and Labor ( salary < Labor = 7000 USD) and the company was in loss for the fiscal year 2008. 4. This is my 6th year in H1 B and it expires in October,2009 My questions are: 1. Can I transfer my H1 B to another Employer at this situation and apply for my new Labor? 2. If Labor is approved, can I file my I140 premium and apply for 7th year extension? 3. How long will it take to cancel the current I140? Please help me out regarding this situation. Thanks and awaiting for your valuable suggestions.

Answer:

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

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What to do if an I-140 gets rejected?

Detailed question:

Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Answer:

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

But here are some things to consider.

Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

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Laid off - Now what ???

Detailed question:

Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

Answer:

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Effect of Lay-off on H-1 and L-1
An H-1 or L-1 holder who gets laid off can be thought to be immediately out of status. There is NO grace period, not even one day. If, however, you continue to receive your salary, it can be argued that you are still in status. How valid or good that argument is remains to be tested.
Being “Out of Status” and Being “Unlawfully Present”
Bear in mind the very important distinction between being out of status and being unlawfully present. Unlawful presence of 180 days bars you from entering USA for 3 years and unlawful presence of one year raises that bar to 10 years. These bars are very difficult (if not impossible) to waive.
Most commonly, unlawful presence is triggered by expiration of I-94, revocation of H-1 by your employer or whenever CIS says your unlawful presence is now beginning.
Being merely out of status does not impose such drastic penalties automatically, but there are dangers here too. If discovered, you can be deported (removed). In that case, you cannot come back for (I believe) five years. Usually, being out of status for a few days or even months by itself may not be a major problem. But you MUST try not to fall out of status. I will provide one method below.

Option 1. Applying for Derivative Status
You can apply for derivative status if your spouse is in USA with his or her own status.

Option 2. Applying for B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a B-1 application could be an option.
- Get Form I-539 from CIS (NOTE: CONFIRM THE FILING FEES)
- Apply for a 6 months change of status to B-1/B-2 (business/visitors visa) which in my view is a catch-all visa/status for all stay in the U.S.
- Attach to the I-539 a letter explaining to the CIS that
1. You have been laid off unexpectedly and that you need to stay in USA to wind up your affairs and to look for a job, if possible;
2. You have the means to support yourself; and
3. You know you are not allowed to work on a B-1/B-2.

This should usually get you 6 months stay without falling out of status.

Note that in one of our cases back in June 1999, CIS seems to say that they may NOT issue B-1/B-2 to everyone. Note the following letter from INS:
"The B-1/B-2 classification is not a "catch all" classification available to all who wish to come to the United States temporarily for whatever purpose. Instead it encompasses a specific, defined class of alien. You must establish the following to be eligible for a B-1 nonimmigrant visa: As you are in the United States conducting business on behalf of a foreign entity, it is reasonable to expect that you are making frequent contact with this entity. Submit evidence of your contact with the foreign company by submitting your phone statements.......Submit a letter from your employer that describe the nature of your employment with them...."
I think CIS is wrong. B-1 specifically appears to me to be a catch-all visa. For example, when someone needs medical treatment, they apply for a B-1 visa. To be safe, we recommend you apply for B-1/B-2, casting even a wider net.

Here are some Follow up Questions from H-1 and L-1 Holders

Q1. What if your company has promised that they will not revoke your H-1/L-1; does that make a difference?
A1. It makes some difference. You are still out of status the day on which you stop working. But the dreaded 180 day period that results in the dreaded 3-10 bar would not apply to you until your I-94 expires or CIS catches on that you are out of status.

Q2. What if the company keeps you on their pay roll but without pay?
A2. CIS is unlikely to allow that as being "in status."" Also, I we were representing the company, we would never advise them to take this route. This is dangerous for the company.

Q3. What is the company has given you a severance package that includes your getting paid for 2 (or more, or less) months after they laid you off?
A3. Technically CIS would consider you out of status from the day you stop working. It does not matter if you are still getting paid. That is what they have said in one of their memos (which we find a rather strange interpretation of the law). But as a practical matter, CIS requires only pay stubs to prove that you were in status. So you may be able to take benefit of this CIS practice.

Q4. Should you apply for some other status?
A4. Probably yes. Some folks apply for a student status (F-1), some for H-4 or F-2 (if their spouses are on H-1 or F-1) and some for tourist (B-2) or business status (B-1). These options could all work to help you stay in status.

Q5. If you covert to another status, can you then convert back to H-1 if you find a new employer?
A5. Yes. We have applied for H-1 successfully in cases where the change to another status (F-1 or B-1 etc.) was still pending.

Q6.1. To protect my status in US, if I transfer from H1 to tourist or business visa, have I to apply for it before my current H1 visa gets expired?
A6.1. Yes.

Q6.2. Am I legal and "in status" if my current H1 is expired and still I am waiting for approval of tourist/business visa?
A6.2. You are authorized to stay in USA while waiting for a decision on a timely filed application.

Q6.3. How much time will it take between I start preparing for tourist/business visa and Your office files the petition for it? (i.e. in preparation of papers)?
A6.3. I do not believe a lawyer is needed, but you can call us to discuss your situation.

Q6.4. Can I hold Tourist and H1, both types of visas at the same time?
A6.4. No.

Q6.5. Do I need to have any specific eligibility for the Tourist visa?
A6.5. If you mean any specific degree or education, no.

Effect of Layoff on Green Card Process
I will address here the most common method of obtaining green card – through PERM. If your situation is different, go ahead and post a comment here. I will respond as well as I can

LAY OFF ANY TIME BEFORE I-140 APPROVAL
If you get laid off before I-140 approval, you can carry NOTHING forward to the next employer. You have to start your PERM all over again with the new employer. If, however, the I-140 gets approved even after the layoff, we can at least try to carry the priority date forward as we would in a ordinary 140 approval. See the discussion in the next point.

LAY OFF AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.
If such a person gets laid off, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
We recommend that an applicant must keep at least a copy of the I-140 approval notice.

LAY OFF AFTER I-140 APPROVAL AND I-485 PENDENCY OF 180 DAYS
Read this article. http://boards.immigration.com/blog.php?b=25
Chances are, you will be fine.

Further Questions 26 Nov 2008
My 485 AOS is pending and 140 is approved. If my current company does layoffs and I happen to loose my job.

A: Can I be without job for some time(small duration)? I mean till I get a new Job?
Ans.As long as your 485 is pending, you are not out of status even if you are not working. You need to find a "similar" job and file AC21 letter with CIS. If there is a gap in employments, that is not a major issue as per the May 2005 Yates memorandum. The only way we can get into trouble is if CIS sends an RFE asking for an employment letter (they usually give us several weeks to respond) and we are not able to provide such a letter showing a "similar" job.

B: Is my Green Card in trouble Immediately if I am out of Job? Is there any provision that I can use in this case?
Ans If your I-140 was not approved and AOS had not been pending 180 days, there would potential for trouble.

C: Will leaving the country and trying for job from India and then coming back in USA help?
Ans. No need.

02/27/09
Q. Hi Rajeev, In context for preserving the PD, is there a time limit on that. If the 140 is approved and I get laid off, can I leave US, return after (say) 2 years with a different H1/L1 and start the GC process with same PD.
Ans. Under the current law, there is no time limit. So, yes, you could.

 

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Supervisory review

Detailed question:

Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Answer:

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

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