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EB2 could be filed while awaiting EB3 approval?

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  • Rough Neighbor
    replied
    I learned it the hard way. The regs and statutes only say this and that to be possible or "can" be done, but the government agencies involved would leave you in the cold as to how, when, where, what, and for whom it's done. How USCIS interprets/implements its statutory mandate is oftentimes being subjected to judicial review and re-interpretation. None yet that I know of, but this particular matter that we're talking about would for sure be litigated soon. Not a question of if, but a question of when.

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  • Mrs. Mani
    replied
    The ability to retain a priority date by a "simple letter" is statutory- it's the law. If you are the beneficiary of an approved I-140, you are entitled to retain that priority date in any future employment based petition as long as the original I-140 was not cancelled or revoked. You submit the previous I-140 approval when you file the new I-140 or even at the AOS stage. Shoot- you can even send a letter to USCIS after filing the AOS asking them to update the file with the previous I-140 approval and requesting the retention of an older priority date. USCIS is obligated to retain the older priority date of any approved I-140 as long as it is still "valid."

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  • Rough Neighbor
    replied
    The question: "Are you seeking to utilize the filing date from a previously submitted Application for Alien Employment Certification (ETA 750)?" sorry, doesn't mean to refer narrowly to the traditional ETA 750 alone. The opportunity to use it can refer from one old PERM/ETA Form 9089 to a new PERM/ETA Form 9089 as well - been there, done that either way.

    Kindly prove that when a new certified PERM with January 25, 2010 priority can retain an April 01, 2007 priority date with your simple letter of request to the USCIS, the fact that in all circumstances the I-140 automatically takes on the priority date of its underlying certified PERM.

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  • Mrs. Mani
    replied
    The question you are referring to in the ETA9089 (Number 1) refers to a very specific set of circumstances whereby DOL could certify the use of an older filing date of an ETA750. That is not the case herein. If OP's previous LC was filed in 2007, then it was an ETA9089 and OP would have to answer "NO" to the first question.

    It doesn't matter what DOL certifies the priority date to be. It's USCIS, per regulations in the Immigration and Nationality Act 8 CFR § 204.5(e) that allows a beneficiary to benefit from the earlier priority date of a previous approved I-140 petition. DOL has nothing to do with it.

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  • Rough Neighbor
    replied
    Let's map out the possible scenario based hypothetically on the OP's case then.

    Presuming that the EB-3 PERM for Company A was filed on April 01, 2007, hence, its priority date was the same. Let's say it got certified a couple of months later, on June 15, 2007. Form I-140 was then filed a few days thereafter.

    Then came the infamous ‘immigrant visa fiasco’ in the following month of July. The principal alien filed her AOS application (but not for her husband) within the filing window from July 02 until August 17, 2007 (estimated period - too lazy to check back) based on the Form I-140 filed the previous month on her behalf. Her I-140 was approved, say, six months or so afterwards, in January of last year. Just recently, her husband filed Form I-539 requesting for the extension of his H-4 nonimmigrant status.

    Then the OP came across Company B with a new job offer under EB-2 category: a) in the same occupational classification as what’s in her certified PERM; b) she has an approved I-140 filed by Company A; and c) her AOS application has been pending way over the 180-day requirement.

    Let’s say the new PERM would be filed by Company B under EB-2 immigrant visa classification on January 25, 2010, hence, its priority date is the same. It’s good if the OP is from any country other than China or India because the idea of the old EB-3 priority date retention might not be necessary. But for the sake of this discussion, let’s say that the OP happens to be from India (EB-2 priority date: 22JAN05/ EB-3 priority date: 22APR01) or China (01APR05/01JUN02) where old priority date retention is a must.

    In my scenario, I would request the DOL to ‘utilize’ the old EB-3 filing/priority date of April 01, 2007 in the first field on ETA Form 9089 http://www.foreignlaborcert.do...gov/pdf/9089form.pdf. Under normal circumstances, in my knowledge, the DOL is very lenient in approving these filing/priority date utilization/retention requests. So my PERM would be certified later on with April 01, 2007 priority date listed on the certification letter with the original form attached. Then I would file my Form I-140 in a very straight-forward manner, confident in the knowledge that my Form I-140 would automatically take on the priority date of my PERM which, I repeat, is April 01, 2007.

    On the other hand, in your scenario, you would file your PERM under EB-2 for Company B on behalf of the OP/alien beneficiary with ‘No’ as an answer, it seems, in the first field on ETA Form 9089. So your PERM would be certified later on with January 25, 2010 priority date listed on the certification letter with the original form attached. Then you would file your Form I-140 ‘not’ in a very straight-forward manner because you would have to write a letter of request to the USCIS for them to retain the April 01, 2007 priority date of the old certified PERM filed by Company A on behalf of the OP. But, sorry, believe you me, the USCIS would ignore your letter of request for priority date retention and would just automatically take on the priority date of your EB-2/PERM for your I-140 which, I repeat, is January 25, 2010. Because as a procedure and as I said in my previous post above (and as you know very well), Form I-140 doesn't have its own priority date aside from what priority date it assumes from the underlying certified PERM application.

    Please remember that for the sake of this discussion, the OP happens to be from India or China where old priority date retention is a must.

    I may be wrong because in US immigration nothing can be chalked up in the absolutes or of anything written in stone. But, sorry, I believe I’m right based on first-hand knowledge in at least a number of real-world cases. So in any case, good luck!

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  • Mrs. Mani
    replied
    Priority Date retention request is made at the I-140 or AOS filing stage not at the PERM/LC stage. The priority date of a labor certification is always the day it is filed. Dept of Labor has nothing to do with retention of old priority dates. In principle, at the I-140/AOS stage, we ask USCIS to take the priority date of the old LC and transfer it to the current case.

    And yes, you can file an I-140 and AOS even when an H4 application is pending.

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  • honeykot
    replied
    thanks

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  • MakeItRight!
    replied
    Hi Rn,

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  • Rough Neighbor
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">When he files his AOS application, he simply has to include the previous I-140 approval notice and claim that he wants to retain the older priority date. </div></BLOCKQUOTE>

    Please note, sorry, that the old EB3 priority date retention request for the new EB2 application happens at the PERM refiling stage, not anywhere later on, because it's LC/PERM that sets priority dates not I-140. (Kindly see the first field on form ETA-9089).

    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">My husband who has an H4, was filed together with my I-40 for an EB3 application. However my husband has not filed I485 yet but I did. </div></BLOCKQUOTE>

    Unlike family-based, the (I-140) petition is being filed 'only' for the principal alien in most employment-based cases. The dependents are simply being immaterially listed on the form, meaning non-listing doesn't preclude alien dependent's eligibility for AOS filing.

    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Currently, he is awaiting renewal of his H4. My question is, my future employer who is willing to apply an Eb2 for me, will I be able to add my husband to my EB2 application despite H4 is pending its renewal or we have to wait renewal prior to filing of my EB2? what are the risk? </div></BLOCKQUOTE>

    Your EB2 application can be filed anytime even while your husband's H4 application for renewal is still pending. A timely filed and USCIS-receipted Form I-539 is a proof of maintenance of nonimmigrant status so your husband can file his own AOS with you also while awaiting the result of his H4 extension.

    And if you're not from China or India your priority date for EB2 is "C"urrent hence all AOS applications for the whole family could be filed concurrently with the I-140.


    (Just an opinion - take it or leave it).

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  • honeykot
    replied
    My husband who has an H4, was filed together with my I-40 for an EB3 application. However my husband has not filed I485 yet but I did. Currently, he is awaiting renewal of his H4. My question is, my future employer who is willing to apply an Eb2 for me, will I be able to add my husband to my EB2 application despite H4 is pending its renewal or we have to wait renewal prior to filing of my EB2? what are the risk?

    Leave a comment:


  • Mrs. Mani
    replied
    What do you mean by "interfile"? When he files his AOS application, he simply has to include the previous I-140 approval notice and claim that he wants to retain the older priority date.

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  • Retro-affect
    replied
    Please make sure that you interfile the new EB2 with old I-140 to get the older priority date. I know this is a hassle, but can be done correctly by a competent attorney.

    Thanks

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  • Mrs. Mani
    replied
    You are eligible for AC21 portability as long as it is same or similar position.

    Once you port, your new employer can file a new PERM and I-140 for you. Then you'll be able to retain the priority date of the EB3 case and get your GC faster.

    Leave a comment:


  • honeykot
    replied
    Actually I am filed EB3 with an approved I140 and my I485 is more than 180 days since it was filed. Am I eligbile for AC21 because another employer is willing to file me an EB2? thanks

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  • Mrs. Mani
    replied
    You can have two employment based cases filed at the same time. In fact, if the EB3 case gets approved, you will be able to retain the priority date of that case for EB2.

    Also, your post is a bit confusing. USCIS is processing I-140 cases filed in the last 6 months. It's the green card that is backed up to 2001.

    Leave a comment:

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