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Question 02/25/12: Priority Date and Recapture of the Old Priority Date Which Becomes "Current" and File I-485 or Seek Approval of Pending I-485: This Q&A is reposted again with minor revisions for those whose priority date becomes current through recapture of old priority. The question: I have an EB-3 prirority date of 01/2003 and filed I-485 during the period of July 2007 Visa Bulletin fiasco using EB-3. The same employer later filed another labor certification of EB-2 in 2005, which was certified in September 2007. Since the I-485 was pending, my employer ignored the second certified labor certification of EB-2 and failed to file I-140. I have two questions. Firstly, whether I can still use the certified EB-2 labor certification and file EB-2 I-140 now to recapture EB-3 priority date. Secondly, what happens if the employer starts a new EB-2 labor certification and files a new EB-2 I-140 petition based on the new EB-2 labor certification. Can I capture EB-3 priority date and ask the local district office where my I-485 has been pending after interview to approve my I-485 using earlier EB-2 priroty date of January 2005? By the way I am an Indian.

Answer: Immigration rules are very technical and laymen do not understand these technicalities. As for the first question, it was a huge mistake that your employer failed to file EB-2 petition when EB-2 labor certification was certified in September 2007. The priority date is "retained" only when I-140 petition is filed and approved. Since your employer failed to file EB-2 petition, the EB-2 priority was "not" retained. Question then remains what happens with the certified EB-2 labor certification? It is permanently gone and invalid. The certified labor certification is valid only for 180 days. Only exceptions to this 180-day expiration rule includes a situation where a I-140 petition was filed but denied or withdrawn or revoked but the same employer filed an amended or new I-140 petition using the expired labor certification application. This opportunity is also gone for you since your employer did not file the EB-2 petition. Let's get to the second question. The answer is "yes," but there is a technicality involved to achieve it. There are two different transfers that confuse people a lot. One is transfer of the approved I-140 petition to a pending I-485. The other is transfer of pending I-485 to yet-to-be filed I-140 petition once it is approved. Obviously, in your situation, transfer of the yet-to-be-filed new EB-2 I-140 to pending I-485 is infeasible because the priority of the yet-to-be filed and approved new EB-2 I-140 petition will not be available in the visa bullen. You can transfer pending I-485 to another approved I-140 petition only when the priority date for the I-140 becomes current. The right step is for your employer to request the agency to amend the yet-to-be approved EB-140 petition recapturing the old EB-3 priority date. Once the EB-2 approved I-140 petition is thus amended recapturing of of 01/2003, your can then ask the officer to transfer pending I-485 application to this newly amended and approved EB-2 I-140 petition with the priority date of January 2003 in EB-2 category and approved your pending I-485 application. Nowadays, the USCIS, from time to time, recaptures the old priority date on their own and approve the new I-140 petition recapturing the old priority date from other previously approved petition. This is particularly true with the Nebraska Service Center. As for the second option of transferring pending I-485 from one approved I-140 petition to another approved I-140 petition, it is possible only when the approved I-140 to which you want to transfer your pending I-485 is EB-2 and visa number is current. Otherwise, you cannot transfer pending I-485 from one I-140 petition to another I-140 petition. Another way to transfer pending I-485 application involves a situation where his/her spouse started the labor certification application with a priority earlier than yours and he/she is about to file his/her I-485 application based on his/her own approved I-140 petition. At that time, you can decide whether you want to ask the agency to transfer your pending I-485 to your spouse's approved I-140 petition using your spouse's priority date which is current. This can happen without filing a new I-485 application. Should this happen, the role of you and your spouse will be switched around, your wife being the primary and direct beneficiary of her employer's approved I-140 petition and you becoming a derivative beneficiary of your spouse's approved I-140 petition. That way, both spouses transfer their pending I-485 applications without filing new I-485 applications. Or if she or he decides to stick to his/her original I-140 petition filed by his or her own employer, he or she can stay with the petition without transferring pending I-485 application to the other spouse's case. This decision will depend on consideration of potential risk of the spouse's employer business and potential revocation of the spouse's approved labor certification or I-140 petition. Therefore, you should assess the situation very carefully before you just jump and transfer your pending I-485 application to your spouse's I-140 petition. Sometimes, it is wise for the two spouses to keep their I-485 applications separately such that in the event that one case faces any challenging situation, the spouse can fall back onto the spouse's pending case as a dependent beneficiary. You and your spouse should seek legal counsel before you even think about such switch of roles. Another implication is potential problem of extending H-1B after reaching 6-year maximum limit if you change your role to a dependent and derivative beneficiary, since you will be forced to work using EAD rather than H-1B status. For the advantage and disadvantage of using EAD vs. H-1B pending I-485, you should refer back to my earlier Q&A in this thread.

Question 02/23/12: AC 21 Porting - Change of Employer After 185 Days of EB-485 Filing and Impact of Different Job Title and Different Salary with New Employment: This Q&A is reposted again to give some EB-485 waiters whose EB-2 becomes current and who are waiting for the final adjudication of their pending EB-485 application. The questions was: My labor certification sponsor was company A. The labor certification was certified, and based on the approved labor certification, I filed I-485 based on the approved I-140. The labor certification salary was $56,000/year. Now I took a new job with the Company B. When I changed the job, I did not invoke AC-21 since the Company A remains the sponsor of the pending green card proceeding. Current job pays about twice of the labor certification salary. The labor certification job title was Programmer Analyst, while the current job with the Company B is IT Manager. However, the duties are very similar. If the Service Center issues a RFE or schedules an interview at the local district office, would the salary difference between the Employer A and Employee B create a problem?

Discussion: The salary difference between the labor certification and the new employment is relevant only if you invoke AC-21. "Invoke" means you change employer after 180 days of filing I-485 taking same or similar occupational classification. In fact, the AC-21 law does not specifically require same or similar salary. It rather requires a same or similar occupational classification. A salary difference is however implicated in assessing whether the job is a same or similar occupational classification with the labor certification occupation since common sense would dictate that a huge salary difference may be an indicator that the two occupations must be different occupations. That is why the USCIS reviews the salary difference in adjudicating AC-21 issue. In your case, though, since you have not and will not invoke AC-21 for the change of employment, on the surface, the salary difference between the two jobs is not relevant. The real issue that can come up and the agency will focus when they issue RFE or schedule interview in your case will be whether or not the labor certification job either existed at the time of filing or still exists. Since basis of the labor certification application lies on the parties' intent to offer and accept the proffered job and such job must not be a speculative job, they will focus on the issue of "existence" of the job offered, particularly when you do not invoke AC 21. Under the immigration law, the alien beneficiary of a certified labor certification application does not have to work for the sponsoring employer since the labor certification job is a "permanent" employment. Accordingly, inasmuch as the job continues to exist and both employer and employee intend to offer and take the job when the green card is approved, there should be no problem. But it is not as simple as what you think. Typical illustration involves a situation where the U.S. employer sponsors a labor certification for an alien in a foreign country. The other illustration is an employer sponsoring a labor certification for an alien in the U.S. working for another employer and is not their employee. In such cases, such law will work fairly smoothly. However, the theory should not be taken as a rule with no variance. As one can imagine, there will be a huge difference between a case where employer sponsors a labor certification for its current employee and a case where employer sponsors a labor certification for somewone who is not its employee. There is also a huge difference for change of employment between a situation where an alien beneficiary of the same employer had an EAD or H-1B or other employment authorization at the time of changing employment and a situation where an alien beneficiary of the same employer had to leave the job because the alien no longer had an employment authorization. Or the alien decides to change employment invoking AC 21. If the alien beneficiary does not work for the sponsoring employer when the alien is authorized to work and the employer attested that it needed the alien and now the job is available for the alien, without doubt, it raises a red flag on the two issues: Firstly, whether the job continues to exist. Secondly, whether either the employer or employee had the required intent to offer and take the job of the company for a duration of indefinite period of time. Sometimes, the issues and evidence to deal with such issues can be tougher than AC 21. In your case, it appears that you still have an option to back up your change of employment either invoking AC 21 or without invoking AC 21 and you should give these options open. This is particularly true for a small company that sponsored the labor certification in that such company may not be able to prove that they have such job offered for the alien when they have only a limited number of projects in the area of the intended place of employment for the labor certification application. You should thus seek legal counsel. Your legal counsel should review and assess carefully and weigh the strength and weakness of each of these two options in your specific curcumstances and advise which option you should take.

When it comes to the option of invoking AC 21 and change of employer, you should look into two issues of difference between the two two jobs in terms of job titles and difference in wages. In old days when the government adopted the Dictionary of Occupational Titles (DOT) for the determination of occupations which had almost 10,000 classifications, the programmer-analyst and the IT Managert were two distinctably different occupations of two different codes. Besides, the programmer analyst was a SVP 7 occupation which usually required a bachelor's degree or less, but IT Manager was SVP 8 occupation which usually required a bachelor's degree and upto 8 years of experience or master's degree and many years of experience. Fortunately, since March 2005, DOT is no longer used by the government for the occupations. It now uses O*Net system of SOC/OES classification system which has only less than 1,000 occupational classifications. In this process of merger of various similar occupations, the programmer-analyst was eliminated as its own occupational classification and became part of Computer Software Engineer, Applications or Computer Software Engineer, Software Systems of Computer Systems Analyst. Accordingly, the adjudicators review the two jobs before and after the change of employer, they focus on the difference in the occupational classification rather than names of job titles, the Service Centers have been lenient in interpreting "similar" occupational classification in the AC 21 Act and inasmuch as the overall description of duties and responsibilities are similar and classification, they accept such AC 21 change of employment. Usually Senior or Manager titles raise some concerns in determining same or similar occupational classification, but they understand that employers give all kinds of crazy titles. For instance, some companies use Software Engineer job title when the job is barely a computer programmmer, while other company gives computer programmer titles when the job represents a software architect! The key is duties and responsibilities. As for the wage differences, double of labor certification wage is something which you should be concerned. However, there are many factors that affect the wage figures, such as time difference between the time when the labor certification was filed and now, physical location difference between large metropolitan areas, particularly where high tech industry is focused, and small rulral towns, and the difference of the size of employers' businesses between small company and Fortune 100 company. They look into all of these factors. Therefore your legal counsel should address such difference to the agency in response to RFE or at the interview if the case is transfered.

Question 02/22/12: Woman Spouse Name Change in the Husband's Passport and Her Passport Renewal, and Potential Problems: My husband and I are about to renew the passports. In the current passport, my name shows maiden name and not married name. Currently my hunsband's passport shows my married name, but I have continued using the maiden name, including I-94, driver license, etc. What are the potential complications to apply for H-1B Extension and I-485 Adjustment of Status in the future?

Discussion: For the married women, they go by the marriage certificates and court orders of name changes in this country. Name change is available when they apply for the citizenship or the woman can file name change petition in the state courts, but in this country, whether or not married woman adopts her husband's family name is just an option and not mandatory. In non-immigrant proceeding such as H-1B, they usually accept the women's names in the passport, but in the dependent nonimmigrant visa application proceeding, women still have to show the marriage certificate. If you keep using maiden name when the marriage certificate shows your married name, you are likely to face a problem. However, this does not present too much problem if the women apply for their own primary beneficiary visa status rather than dependent visa status. Using two different names will present a huge problem on two issues: One is the identity issue and the other is their need for determination of "legal" name. Any names other than "legal name" are considered alias and nick names. In the green card proceeding, they strictly go by "legal name" and alias or nick name is not acceptable. Legal name is not determined by the passport but only by one of two evidence: Birth Certificate or Marriage Certificate. Such identity and legal name issue will cause a tremendous delay in the green card proceeding from the perspective of identification of beneficiary as well as name check for security clearance. In the future, CBP will use the passport as the primary document for legal status clearance and identity clearance rather than I-94, and if you use different names in the passport and I-94, you are likely to face problems. I urge to straighten out the mess and keep all the documents under your "legal name." If you adopted your husband's name in the marriage certificate, you may want to change your names in other documents to use your legal name because that is your legal name.

Question 02/20/12: Immigration Option for F-1 Student Married to Permanet Resident: A F-1 student married a permanent resident who has yet to go one year to apply for the naturalization. The F-1 student's visa will expire before the spouse becomes a U.S. citizen. The I-130 has been approved for F-2A category. What option do I have"

Discussion: "Visa" is a consulate issued visa stamp in the passport and nonimmigrant status is determined by I-94 and not a visa. For F-1 student, there is no expiration date on I-94. It is D/S (Duration of Status). Inasmuch as the student keeps enrolled in the school with renewed SEVIS I-20, the student can remain in status regardless of expiration of the visa in the passport. Currently F-2A visa number is heavily backlogged across the board. There is no way to bypass the F-2A visa cut-off date inasmuch as the student has to rely on F-2A approved I-130 petition. The best policy is to keep extending the degree program. If the student is in undergraduate program, by enrolling in a Master degree program, the student can extend F-1 duration and obtain another CPT and OPT. In the event that the student fails to maintain F-1 status, the student's stay in the U.S. turn unlawful, but until the government authorities (immigration officers, consular officers, or immigration judge) determines that the person is out of status, the student can still apply for I-485 once the spouse becomes a U.S. citizen. Since the student is in D/S, even if the student fail to maintain the status, until one of the foregoing official determines that the student is out of status, the clock of three-year bar or ten-year bar attached to unlawful presence for six month or one year will not be ticking. Accordingly, such student should not contact the government agencies, no matter what, not to induce one of the foregoing government officials to determine that the student is unlawfully present in the U.S. Generally undocumented spouse of a U.S. citizen is eligible for I-485 even if the status is illegal, but just in case I-485 is denied and the student will have to apply for the immigrant visa through the consulate in his/her home country, it is a best policy not to expose unlawful status until I-485 is filed in the cases of a F-1 student. This is a general answer to the general question and cannot apply to specific situation of any individual as each case is different.

Question 02/19/12: Legal Oblication of EB-485 Approved Employee to Work for the Sponsor Employer: This question was discussed on our website back in 2010. At the request of the new immigrants, we like to edit and copy it here. A question was addressed to this site at the time that he received EB-485 approval yesterday based on the employment-based petition filed by his employer. He said he had never changed and never invoked AC 21 change of employment. Since the EB-485 was approved, he started seeking new employment and sending out employment applications to various employers. The question was whether there was any law that forced him to work for the green card sponsor employer even after the green card is approved?

Discussion: The green card employment is "permanent" employment. "Permanent" means the employment term is not temporary and not fixed and must be for a period of "indefinite" duration. Inasmuch as there is no ending date, it can be considered a permanent terms of employment. The employer sponsed employment based immigration requires both the employer and employee to retain "intent" to offer such permanent employment and accept such permanent employment on or before the I-485 is approved. If the employer does not maintain such "intent" and file a labor certification and I-140 petition, it can be construed as fraud. If the employee does not have such "intent" and sign the labor certification application and and file I-485 application based on the employer-sponsored I-140 petition, it can also be considered a fraud. The issue is "intent" is a mental state as judged from the actions of the employer or employee since in most cases there is no direct evidence. The issue faills on circumstantial evidence. AC-21 portability of approved I-140 petition changed the picture and both the employer and employee are freed from such obligation if two conditions are met. One is that until AC-21 is invoked, the employer and employee retain such intent. Practically, in the context of AC-21, such oblication is limited until the alien invokes the AC-21 change of employment after 180 days of filing of I-485 application in similar or same occupational classification. There is a grey area where the alien does not invoke AC-21 just as the question in the instant case and there was no change of employment until the green card is approved. In such context, it may be assumed that both the employer and the employee retained such intent at the time I-485 was approved. In old days, the legacy INS was active in initiating a legal proceeding to revoke the approved green card and launched a revokation proceeding, followed by deportation proceeding based either on the ground that there was a fraud on the parties or the INS approved the I-485 application without the knowledge of such fact of ill-conceived intent of the parties. The theory of the law is that "had the agency known the true facts," the agency would not have approved the employment-based I-485 because the I-485 could have been ineligible without such intent. Intent is proven in most cases by circumstantial evidence since no one can go into the state of mind of other person. The evidence they used included the record of the new immigrant searching job with another employer immediately before or after EB-485 was approved. For the reasons, even though there is no fixed period of time for a new green card holder to work for the sponsoring employer, legal counsels advised the employees not to send out employment application in writing to other employers immediately prior to the approval of I-485 application and at least for certain period of time like two months or three months revealing the true intent not to work for the sponsor employer, because such behavior can be construed as relection of the true state of mind and true intent of the employee not to work for the sponsoring employer before or on the date of approval of I-485 application owing to short period of time that lapsed when they changed employment. This problem used to pop up during the naturalization proceeding when the agency learned that the alien changed employment immediately before or after the green card is granted. The foregoing inent issue can be overridden when the alien left the job because of employer's decision to terminate the employment or because of change of circumstances which are beyond the control of the parties such as slow-down of business and layoffs or bankrupcy or close-down of buriness Again AC-21 affected this issue, and it appears that the agency may no longer actively look for this issue. But theoretically, the issue still exists and a law is a law. Accordingly, there is always a potential risk of this issue popping up after green card is approved, especially when there is a grudged sponsor employer who is successful in obtaining and possessing such adverse evidence and contact the agency to revoke the green card. Again, in light of the AC-21, this issue rarely comes up and people can use in some case AC 21 to defend themselves when the issue involves such behavior before the approval of I-485. However, when the employee changes employment "immediately" after the approval of EB-485, such evidence may strongly go against such employee. There is so-called a rule of 60-day presumption of "preconceived intent" in the nonimmigrant and immigrant proceeding. There is no case law that this reporter knows as to AC-21 precluded such presumption in the post-AC 21 immigration proceedings. Under the circumstances, precaution should be a guiding principle, recognizing importance of "timing" in the rule of presumption in favor of the government.

Question 02/18/12: Using EAD vs H-1B Pending EB-485 Application: I am in H-1B status and my EB-2 India visa priority became current last month and filed I-485 applications for myself and my wife along with the ancillary applications of EAD and Advance Parole (Travel Document). What is the implication and advantage of using EAD or H-1B until my green card application is approved?

Discussions: Nowadays, if one applies for EAD and AP, USCIS issues a single card for EAD and Advance Parole (Travel Permit). But EAD and AP rules and conditions are separate each other. When one travels on Advance Parole, one should use EAD to continue employment. Besides, at least theoretically, once one uses Advance Parole and EAD, one is no longer considered a H-1B nonimmigrant. However, pending the EB-485 application, one will be authorized to stay and work inasmuch as one does not violate the immigration rules. The benefits of traveling on AP and working using EAD include: Both the employer and the alien are not subject to extremely complicated rules and restrictions which are attached to the H-1B status such as wages, worksites, employers, etc. EAD permits multiple employment inasmuch as one keeps the I-140 petitioned employment. This option also opens a door for change of employer 180 days after filing of EB-485 because new employers will be reluctant to offer employment if one chooses H-1B nonimmigrant status because of the expenses involved and very complicated LCA and H-1B compliance requirement, violation of which will subject the H-1B employer to potential debarment or civil penalty or criminal penalty. For the reasons, even for the petitioning employers, EAD is considered a preferred option for two reasons: They are freed from the complicated H-1B rules and penalties. Besides, by taking this option, the employers can reduce the number of H-1B employees in the staff pool such that they do not fall into the H-1B Dependent Employer status which presents horrible restrictions for such employer when they want to hire new H-1B employees. They can also avoid paying incredibly high P.L. 111-230 filing fees to hire a H-1B employee when they have more than 50 employees and more than 50% of the employees are in either H-1B or L-1 visa status. Accordingly, the employees will be pressured by the petitioning employers to switch to EAD/AP from H-1B status. Another benefit of EAD for the employer is availability of relocation of the employee from one location to other locations very much without any restrictions inasmuch as they keep the I-140 petitioned permanent job alive and intact. This is considered a huge benefit for the consulting business employers that will have to keep the employee move around from one worksite to another worksites. Once the alien uses this option, he/she should remember that he/she should not leave the country before AP is approved to return on EAD/AP. They should not reenter on other nonimmigrant status because such entry will be considered abandonment of pending I-485 and later I-485 can be denied. Another benefit of EAD/AP is that once the employer and the employee decide to have his/her H-1B nonimmigrant visa status reinstated after he/she returns from the trip using AP, they can file H-1B extension and approval of such H-1B extension will automatically reinstate his/her H-1B visa status without need for leaving the country. This benefit applies when the underlying H-1B remains valid at the time of H-1B extension petition. One more benefit of traveling on AP: He/she does not have to have a valid visa to reenter the country and return to work. The big disadvantage of this option is that he/she is not considered a nonimmigrant. Rather he/she is admitted as a "parolee." Parole is a conditional permit to enter the country without any nonimmigrant legal status. Parole is not a visa. Thus the parolee is not in any "status." They rather stay and work under the lawful authorization of "stay" by the DHS pending EB-485. Accordingly, when pending EB-485 is denied, he/she turns into a unlawful stay with no opportunity for change of status or extension of nonimmigrant status in the country. Since unlawful presence clock will start ticking, their stay beyond six month or one year will make him/her subject to three-year bar or ten-year bar from returning to the U.S. once he/she leaves the country. In other words, once I-485 is denied, one cannot obtain any visa status within the country. The advantage of keeping H-1B is that even if one's EB-485 is denied, one can keep staying and working in H-1B status with same employer or with other employers and try again another PERM application, I-140 petition, and EB-485. In other words, he/she can explore second or third opportunities of green card application. For the foregoing reasons, he/she should assess very carefully his/her situation with the help of legal counsel before one makes a decision. If underlying PERM certification or approved I-140 or pending I-485 is potentially vulnerable to denial for whatever reasons, he/she never take EAD/AP option. If everything is 100% solid and clean, he/she may take EAD/AP option to enjoy more 'freedom' pending EB-485 approval. He/she should not act on one's common sense or online sources because he/she does not know the laws and rules. Always seek legal counsel in making this decision. Online discussion board and online information or information from friends or lay people can hurt him/her because same laws and rules apply differently when each specific fact is different from what other people are talking about. How would one know the specific fact? Only lawyers understand what "fact" means and what "evidence" means for each individual situation. In this regard, people should not take this site discussion as a legal advice either as it does not apply to the people when it comes to each individual situation. This firm and this reporter are not responsible for the consequences of such reliance. Remember this disclaimer.

Question 10/09/11: Status of 7th Year H-1B Extension When Underlying PERM Application Denied: After spending years in the United States, my new employer filed the PERM application before my H-1B reached 5th year. Unfortunately, my PERM case was turned into Audit track and it took more than one year before I reached the 6th H-1B limit. My employer then filed 7th year H-1B extension based on AC 21 law, which has been approved. Soon after the approval of the 7th year H-1B extension, my employer received a denial of the PERM application. What is my legal status?

Discussions: You are not alone. When a PERM case is audited, there is a higher level of denial after a prolonged period of time. When it comes to the validity of H-1B 7th year extension when the underlying PERM application is denied, the black print of the AC 21 law is not clear. However, the USCIS has interpreted and been implementing a policy that the alien will maintain a H-1B status until its 7th year H-1B period expires. Accordingly, you should seek an opportunity to file PERM application either through the same employer or different employer again building a clean case to obtain PERM approval and subsequent I-140 approval on premium processing basis, (all before your H-1B expires,) such that you could extend your H-1B in three-year increment based on the approved I-140, assuming the visa number is not available for your prirority date. You should move fast and do whatever you can to get these things done in time.

Question 09/25/11: Eligibility of 7th Year H-1B Extension Pending Appeal of I-140 Denial: I am a citizen of the United Kingdom, born in London. I have about nine (9) years of experience in financial sector in a manager or executive capacity. I have a MBA degree. I was not able to apply for L-1 nonimmigrant visa and EB-13 multinational corporate executive immigrant petition route because I had a problem of establishing one of three-year experience immediately before applying for L-1 visa under the law. Accordingly, my current employer invited and employed me in a H-1B capacity. I will be eligible for I-485 application once I get EB-2 labor certification approval and I-140 petition approval since there is no EB-2 visa cut-off date for a British. My employer filed and obtained the labor certification application and based on the certified labor certification application, filed EB-2 I-140 petition. Unfortunately, the Service Center denied the I-140 petition on legal technicality of qualification requirement. My lawyer has convinved my employer and me that it is a win-able case and advised to file an appeal. The employer thus filed an appeal. Pending the appeal, my H-1B is about to expire and about to reach H-1B six year limit. The question thus involves whether I will be able to apply for H-1B 7th year extension pending the appeal. Please help.

Discussions: It sounds your whole career in the financial profession can be at stake. Your question involves a so-called AC-21 Act issue. The law is not clear on the answers to your question. However, the legacy INS and current USCIS have been interpreting the AC-21 Act and H-1B 7th Year Extension provision in a series of memorandum. It is often called Yates Memorandum or Aytes Memorandum or Neufeld Memorandum. These memoranda provide that the denial of I-140 petition is considered "not" final if the appeal is timely filed and pending. Since it is not final, if the H-1B professional is otherwise eligible for the 7th year extension, the professional should be eligible for the 7th year extension. In your case, the labor certification was filed before you reached the 5th year in H-1B and 365 days have passed since the application was filed and your H-1B is about to reach the 6th year now. Accordingly, on the two premises, you should be eligible for the 7th year extension. Firstly, I-140 petition is considered pending in that the USCIS denial is not considered final. Secondly, otherwise, you are perfectly eligible for the 7th year H-1B extension. Accordingly you should seek legal counsel from your lawyer and see whether he or she will file the H-1B 7th year extension petition for you. Good luck.

Question 09/24/11: Recapture of EB-3 Priority Date for Retrogressed EB-2 Approved I-140 Petition: I am a guy from the People's Republic of China. I am a nuclear engineer. My employer filed a EB-3 labor certification application on January 11, 2004. The labor certification has gone through a difficult course and finally certified. The employer then filed EB-3 I-140 petition, but the Service Center challenged it on an issue of the unduly restrictive requirement and after going through a hassle, eventually the petition was denied. The denial of the petition was then appealed by my employer all the way through the federal court. Pending the litigation, the employer decided to file another labor certification on August 3, 2010 for EB-2 classification requiring a master's degree but practically requiring no complicated skills. The labor certification application was certified without any problem. Since I earned a master's degree in Nuclear Engineering, the employer filed EB-2 I-140 petition. The EB-2 I-140 has been approved with the priority date of August 3, 2010. Believe it or not, yesterday my employer received a news from its lawyer that the federal court sustained its lawsuit against the USCIS denial of EB-3 petition. Now, the next question is whether my employer can consider filing of an amendment of the approved EB-2 petition to amend the priority date to January 11, 2004 so that I can file I-485 application.

Discussion: Wow, your story is one of a few instances of a luck knocking at the door out of blue. Under the law, the USCIS decision is not "final" if a case is appealed either within the agency or to a federal court. Accordingly, your employer's EB-3 petition has just remained dormant and alive pending the decision of the court. Now, since the federal court has handed down its decision, it became final unless the agency appeals the court decision, which is not likely in this case. The rule of the privilege of taking the earliest priority date out of multiple approved I-140 petitions with different classifications applies to any approved multiple I-140 petitions, regardless of the sequence of approval of each petition inasmuch as the petitions are retained by approvals and not revoked by the agency for fraud, misrepresentation or error. However, before your employer can file the amendment petition, your employer will have to wait until it receives the approved EB-3 petition. The court decision is an order to approve the petition but not the approval of the petition itself. Once the EB-3 petition is approved, your employer may file the amendment petition to capture EB-3 priority for the approved EB-2 petition, followed by filing of your I-485 application since your new EB-2 priority date will be earlier than the cut-off date for EB-2 China in the Visa Bulletin. Good for you!

Question 09/24/11: Recapture of Spouse's EB-3 Priority Date for Another Spouse's EB-2 I-140 Petition: My employer filed labor certification application on January 17, 2004 which has been certified. The employer filed EB-3 I-140 petition with the priority date of 01/17/2004, which has also been approved. I am a Chinese. I could not file I-485 application during the July 2007 Visa Bulletin fiasco period because I was outside of the country and could not return to the country during the period. This has created a lot of problem for me. Fortunately, my wife's employer also filed labor certification application on April 24, 2010 which was approved without any problem. Her employer then filed EB-2 I-140 petition based on the her own certified labor certification application. The petition has been approved without any problem. Her employer is now considering filing of I-140 petition to amend the priority date from April 24, 2010 to January 17, 2004, recapturing my priority date. I wonder whether this will work.

Discussion: Under the immigration regulation, the alien beneficiary of "multiple" approved I-140 petitions which have been retained and not revoked for fraud or misrepresentation or errof can use the earliest priority date out of different priority dates of the multiple approved I-140 petitions of same classification or different classifications. However, the rule also states that the priority date cannot be transferred to others, no matter whether the other person is a spouse or unrelated alien. Therefore, your wife's employer cannot obtain approval of amendment of its approved I-140 petition to capture your priority date. Aside from the capturing earlier priority date out of multiple retained I-140 petitions, there is a rule of transfer of pending I-485 application to the spouse's approved I-140 petition. This rule of transfer of pending I-485 application to the spouse's approved petition is permitted only when the spouse's priority date of the approved petition is "current" in the Visa Bulletin. This rule will not help you and your wife at all. Good thought for your wife's employer but unfortunately, it will not work.

Question 09/16/11: EB-3-140/485 Porting & Consequences of New Employer's EB-2 Denial: My current employer (XYZ) filed EB-3 labor certification in 2004, followed by EB-3 I-140 petition approval. I filed I-485 in 2007 during the July 2007 Visa Bulletin fiasco and I have been working for the employer using EAD. Now I have an offer from another employer, ABC, that intends to initiate EB-2 process immediately upon my joing the company. Current company is located in Iowa and the other company is located in Texas. I have no doubt in mind that the current employer in Iowa will be infuriated if I change the job and will immediately withdraw the approved EB-3 I-140 petition and the USCIS will revoke the approved EB-3 petition. I have two parts of questions: What if the new employer's PERM application or EB-2 I-140 petition is denied? What is the consequences of such denial on my nonimmigrant status in the United States? What if somehow EB-3 moves ahead and the visa cut-office becomes current for my priority in the future after I changed employer and the new employer's EB-2 venture on behalf of me failed?

Discussion: It sounds you are not too familiar with the AC-21 portability rules. Under the AC-21 rules, the employee can change employment if 180 days are lapsed from the date of I-485 filing, provided that the new job is same or similar job to the current employer's labor certification job. If you meet the AC-21 portability, withdrawal of the approved I-140 petition by the petitioning employer does affect the approved I-140 petition since the petition is ported to your new employer, unless the approved I-140 petition is revoked by the USCIS for fraud, misrepresentation or error. In your case, four years have lapsed since you filed the I-485 application and all along you have been working for the petitioning employer. Sometimes, angry employer address to the USCIS to revoke the approved petition with the argument that you had no intent to work for the labor certification permanent job at the time I-140 petition was filed. Had you left immediately upon filing of EB-485 and there are other evidence that can implicate your ulterior motive, the agency may look into the issue. But this rarely happens. Besides, in your case, lapse of four years of work with the employer after filing I-485 will constitude circumstantial evidence against such argument of the employer and the agency will not be able to take any action. As for the failure of the new employer's EB-2 petition process on your behalf, it will have no impact whatsoever on your ported approved I-140 and pending I-485 application. When you port, the EAD which obtained as an anxillary benefit of your I-485 application will remain valid with the new employer or any other employers. As for your legal status, you will no longer be in a nonimmigrant visa status if your new employer does not file a H-1B transfer petition or three-year increment H-1B petition based on the approved I-140 petition, but it will not affect your lawful permitted stay and work with your new employer because under the immigration rules, pending I-485 proceeding, the alien is permitted to stay lawfully in the United States. There is one caveat, however, before you jump to the new employer, you should make it sure that you are eligible for the approved I-140 porting to the new employer, meeting all the thresholds for porting under AC-21 law. As for your last question, once your visa number becomes current in the Visa Bulletin, the USCIS will approve your I-485 inasmuch as you do not work without employment authorization or overstay for 180 days or longer since the latest admission to the United States under the immigration provision, 245(K). You do not even pay any penalty for this relief. Good luck.

Question 09/15/11: Impact of Moving to Other Country or Other Employer After I-140 Approval: I worked with XYZ company in San Jose, California until July 2011 as a software engineer. The XYZ company is a multi-national corporation having subsidiaries and affliates all over the world. The XYZ company filed labor certification which was filed on August 5, 2007, which was certified on January 18, 2008. The I-140 petition was filed on January 25, 2008, which has also been approved. I am an Indian born in Chennai, India. In July 2011, I joined XYZ-Chennai, India working as a software engineer and doing a same type of work. XYZ-Chennai is a subsidicry of XYZ in San Jose, California. The XYZ company did not withdraw the approved I-140 petition. Since I am not working at this time with the XYX in San Jose, I wonder what will happen with the approved I-140. Specifically, whether this petition is still valid and I can file greean card application based on the approved petition. What happens if I leave the XYZ group and take a job with other company. The other company may file EB-2 labor certification and I-140 petition for me. What will happen with the XYZ's approved I-140 petition for me?

Discussion: Your question involves the validity of an approved I-140 petition with the same employer or different employer. The basic premise is that the approved I-140 remains valid unless the petition is withdrawn by the employer or revoked by the government for fraud or misrepresentation or error. Accordingly, if you return to the XYZ company either in H-1B or L-1 visa, you can apply for adjustment of status to a lawful permanent resident (I-485) in the United States when the visa number becomes current for you. Or you can go for consular immigrant visa processing through the National Visa Center and American Consulate in Chennai, India. The approved I-140 cannot be transferred to another company, no matter whether another company is a subsidiary or an affiliate or a different company. Accordingly, your current employer in Chennai, XYZ-Chennai, cannot sponsor your immigrant visa application. Your next question was what happens if you change the job with another employer in the U.S. that is willing to sponsor the labor certification and EB-2 I-140 petition for you. Again neither certified labor certification nor approved I-140 petition can be transferred to another employer. However, the priority date of the "approved" I-140 petition of XYX in San Jose is permanently retained by you and carried on your backpack unless the underlying certified labor certification application is revoked and approved I-140 petition is revoked by the USCIS for fraud or misrepresentation or error. Revocation of the approved I-140 petition based on the withdrawal of the approved I-140 petition by the XYZ will not affect your retained priority date. Therefore, if the new employer's labor certification application is certified, you can recapture earlier priority date from the XYZ's approved I-140 petition when your new employer files EB-2 I-140 petition based on their own certified labor certification application. The earlier priority date is not automatically recaptured by the Service Centers. The Nebraska Service Center and the Texas Service Center adopt two different practices. The Nebraska Service Center usually recapture the earlier priority date if the new employer checks "yes" to the question in Part 4, Item 6 "Has any immigrant visa petition ever been filed by or on behalf of this person?' and submit the original of the other company's earlier approved I-140 petition and a copy of the earlier certified labor certification application. Once it was marked "yes," your new employer must file attachment to the I-140 petition and explain the earlier approved I-140 petition which was sponsored by XYZ company. This works well when the earlier I-140 was also approved by the Nebraska Service Center. However, it was approved by the Texas Service Center, either they do not automatically recapture earlier priority date or it takes time for them to adjudicate the new I-140 petition since they need a file transfer from the Texas Service Center. Currently, the Texas Service Center does not automatically recapture the earlier priority date from another earlier approved I-140 petition. However, they have a follow-up proceeding avaialable to request the recapture of earlier I-140 priority date by email. Once this email is received and the new employer filed another employer's earlier approved I-140 petition and labor certification is filed, they are fairly quick in recapturing earlier priority date. Since earlier priority date is not automatically recaptured by the service centers, you cannot file I-485 application concurrently with your new employer's approved I-140 petition unless the new I-140 was approved recapturing the earlier priority date. Therefore, even if your recaptured priority becomes "current" in the Visa Bulletin, you cannot file I-485 application until the priority date is recapture in the new I-140 petition. It is thus critically important that your new employer meticulously pursue priority-date recapturing I-140 petition. Good luck.