I-140 Approved now India with same employer

[Hasham]

Hello Experts,

I have a I-140 (EB3 Category) approved with priority date March 30, 2011. I have moved to India in 2012 and working with same employer since than. 

Recent USCIS Visa bulleting states that people are called for application of EAD with priority date upto September 2008.

What should I do 

1. Continue with my employer in India and wait for the priority date to become current? This may take 3-4 more years

2. Ask my employer for USA transfer and wait there? Also a longer process about 2 years with ambiguity.

3. Change employer who can sponsor H1 and take over I-140.

 

Please advise

Regards

Hasham

[care_candidate]

Hasham,

What I think that your assumption that it will take 3-4 years for your PD to become current is far fetched. Recently, EB-2 India have known to move about 20 days per month and lets make optimistic assumption that EB-3 PD would be moving at 75% of speed of that of EB-2. ie 15 days per month. So, as it it is currently MAY 2008 (Not SEP 2008 as you say and reason is given below with *), yours is 30 months behind. So, it is unlikely that your date will come in at least 60 month, which is 5 years from now.

1. So if you stay with employer don't expect that your GC will come in 6 years assuming once you apply for I-485 it will take a year to get. And if you want to port that in six month after you apply for I-485, it will be 5.5 years from today.

2. Don't know what you are asking but I don't think it will make any difference if you wait in USA or India for waiting period for PD to become current.

3. You may very will change employer but unless that new employer (Who is also willing to sponsor H1b no matter what) agree to start your GC with EB-2, you don't gain anything. As typically first two steps will take about 2 years to complete, you will not lose any time. You can ask for recapturing same PD with new employer.

Along with applying for I-485 at future date, you two choices to apply. If you are in US, you may use adjustment of status or consular processing. And, if you are outside US, you must apply for consular processing. Details of these two can be searched over internet.

* You probably don't know as many candidates, but you see in bulletin that there are two charts - 'Final Action' and 'Date of filing'. 'Final action chart' is the one when they will start working on your application. 'Date of filing chart' is only used for you to apply but your application will not be processed unless the first chart date becomes active. That means, even if 'Date of filing' surpasses your PD, there is second test that needs to be fulfilled before you become eligible to apply. Even though this chart 'Date of filing' is published, you can only use it only if USCIS tell you to do so. Each month along with bulletin, they tell you whether or not you can use this chart. It is published at following web page.

https://www.uscis.gov/visabulletininfo

(Scroll where you see "You must use the.....")

So, in summary it is like having two test before your use chart "Date of filing'

First, Surpass your PD

Second, They tell you to use this chart.

FYI: Last time they told you to use this chart was during November 2016 to January 2017.