Proposed Rule Changes Affecting EB1, EB2 & EB3.


Recommended Posts

This week, the Murthy Law Firm attorneys will answer questions relating to the proposed rule changes affecting EB1, EB2 & EB3 immigrant workers.   

 

You can find more information here: http://www.murthy.com/2015/12/30/newsflash-proposed-rule-would-provide-improve-job-flexibility-grace-periods-and-more/

 

Rules for Topic of the Week Threads:

 

 1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

 

 2. The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

 

 3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

 

 4. Please do not provide information which would identify any specific company, university or individual. 

Link to comment
  • Replies 62
  • Created
  • Last Reply

1) If we have approved I-140 from Employer A and 2 months later We change Jobs to Employer B and then 6 months get over while working with Employer B, Can Employer A still revoke I-140 with this new rule after 6 months are complete for the approved I-140 ??

 

2) Second rule about grace period mentions specific language " one-time " .

Does this mean one can use the grace period only once during his/her stay on H1B Status ?

Link to comment

Below is my current Status

EB3 Category

140 Approved, 485 Pending in 2007

PD 2007

 

Applied for 485 before Marriage, so need to keep H1b active so that my wife can have status (h4), does the new

rule helps in any way for BOTH of us to move from H1B and H4 to EAD.

Link to comment

1. If I change my employer, does the new employer has to file PERM again?

2. Can I use the same PD when I take up a new job which is not same/ similar one mentioned in my PERM?

1. Except in instances where AC21 applies, the new guidance does not forgo the need to potentially file a new PERM when an immigrant offer changes.

2. Yes, priority date retention is not based on the similarities of positions.  

Link to comment

I have a specific question, if someone could answer will be great help. 

I have 140 approved almost 4 years ago with employer A. Then I moved to employer B and employer A revoked 140. My current employer is in process of PERM.

 

1) My question is with proposed memo, will I able to get extension even my 140 is not approved with current employer and even previous 140 is revoked?

2) How would I know if my employer A revoked 140 or not?

Link to comment

1) If we have approved I-140 from Employer A and 2 months later We change Jobs to Employer B and then 6 months get over while working with Employer B, Can Employer A still revoke I-140 with this new rule after 6 months are complete for the approved I-140 ??

 

2) Second rule about grace period mentions specific language " one-time " .

Does this mean one can use the grace period only once during his/her stay on H1B Status ?

1. Employers can still withdraw I-140 petitions after implementation of the new guidance, however the proposals suggest the withdrawal should not affect priority date retention, AC21 and H1B extensions. 

 

2. It is not clear from the proposal if this "one-time" grace period is pursuant to I-797 approval notice or six-year H1B period. 

Link to comment

My I-140 is approved in 2013 and waiting for priority date(Jan 2012) to be current to apply for I-485. my H1B has one and half year more left for remaining h1b period. Can I change change employer now or is it better to wait for the law to be approved and get EAD and change the employer?

 

If I change the employer now does the new employer has to apply PERM and I-140 again? 

Link to comment

I have a specific question, if someone could answer will be great help. 

I have 140 approved almost 4 years ago with employer A. Then I moved to employer B and employer A revoked 140. My current employer is in process of PERM.

 

1) My question is with proposed memo, will I able to get extension even my 140 is not approved with current employer and even previous 140 is revoked?

2) How would I know if my employer A revoked 140 or not?

1. The proposed changes suggest an individual can obtain H1B extensions even when an I-140 is withdrawn by an employer if that I-140 has been approved for at least 180 days prior to withdrawal.

2. You can check the online status at www.uscis.gov. However please be aware USCIS does not always update the case status punctually or accurately 100% of the time.  

Link to comment

1. The proposed changes suggest an individual can obtain H1B extensions even when an I-140 is withdrawn by an employer if that I-140 has been approved for at least 180 days prior to withdrawal.

2. You can check the online status at www.uscis.gov. However please be aware USCIS does not always update the case status punctually or accurately 100% of the time.  

Thank you so much for response.

I checked with USCIS website it says below. I hope that means it is still active. Calling USCIS wil help?

On ##/##/## date we mailed your document for Receipt Number SRC######, directly to the address you gave us. If you do not receive your document by Jan ##, 20##, please go to www.uscis.gov/e-request to request the document be sent to you. If you move, go to Change of Address Information | USCIS to give us your new mailing address.

Link to comment

My I-140 is approved in 2013 and waiting for priority date(Jan 2012) to be current to apply for I-485. my H1B has one and half year more left for remaining h1b period. Can I change change employer now or is it better to wait for the law to be approved and get EAD and change the employer?

 

If I change the employer now does the new employer has to apply PERM and I-140 again? 

 

The I-140 EAD rule, as proposed, will apply to a relatively small group of people. We will be posting a more detailed analyses of the rule on MurthyDotCom in the near future, but as explained in our initial outline of the rule:

 

  • In extremely limited circumstances, the beneficiary of an I-140, and the individual's dependent family members, may be eligible to apply for EADs. However, the eligibility requirements are quite restrictive, including the need to show "compelling circumstances" (e.g., medical emergency, employer retaliation), and recipients of this benefit typically would be required to "… forego adjusting status in the United States and instead seek an immigrant visa abroad through consular processing."

 

Unless a person has an I-485 that has been pending for a least 180 days, if one moves to a new position, the employer would typically need to file a new PERM case.

Link to comment

Hello,

 

This is my situation:

H1 started in April 2006, PD is June 2011, I-140 approved in Jan 2012

Latest H1 extension was denied after I-94 expiry and have to leave to India. 

 

Question: Is there any hope of this rule I-140 EAD being helpful to me when I am in India?

 

Thanks for your time

 

PM

Link to comment

Hello,

 

This is my situation:

H1 started in April 2006, PD is June 2011, I-140 approved in Jan 2012

Latest H1 extension was denied after I-94 expiry and have to leave to India. 

 

Question: Is there any hope of this rule I-140 EAD being helpful to me when I am in India?

 

Thanks for your time

 

PM

Based on the limited facts above, it sounds like your H1B was denied because the extension was filed after you were no longer in status. Therefore, requiring the need to obtain an H1B visa prior to continuing your employment in the U.S. It is not clear this situation would be considered compelling enough for USCIS to issue the EAD. Nonetheless, if you require further assistance regarding the denial or the H1B visa, feel free to contact our office. 

Link to comment

I am working with the same employer with same capacity but at different location. While working at previous location, I 140 was approved. With the new rules, does the employer need to apply for new perm and labor due to location change?

The answer to that will depend on how the PERM was drafted. It is best to either speak directly with your attorney, or contact our office to discuss the matter in detail. 

Link to comment

Based on the limited facts above, it sounds like your H1B was denied because the extension was filed after you were no longer in status. Therefore, requiring the need to obtain an H1B visa prior to continuing your employment in the U.S. It is not clear this situation would be considered compelling enough for USCIS to issue the EAD. Nonetheless, if you require further assistance regarding the denial or the H1B visa, feel free to contact our office. 

 

Thanks a lot for your response. Just wanted to add this follow-up details: The H1 extension was applied before the I-94 expiry. However, USCIS took a long time to adjudicate and eventually denied the case due to the absence of a client letter. The client has a policy that prevents them from providing such letters to sub-contractors. No levels of escalations helped with this. Because of this denial, I had to stop working, lose the job, leave all my home and all major belongings behind, discontinue my kids education and face a major financial crisis. I am not sure what more needs to happen for USCIS to consider it as "compelling" circumstances. Appreciate your response. 

Link to comment
Guys,

 

We dont have much options to fight this proposed rule apart from comments. Proposal Comments can also be hijacked by immigration haters and lobbyists. The only way we can show our strength is by gathering as many signatures as possible to show white house how serious we are with this rule. 

Keep pouring in as many signatures as possible on this petition - 

 


 

Forward to as many friends as you can. This will definitely get the attention of white house and they can review the proposal before it is final.

 

There is already close to 100 signatures on this petition. We need about 3,333 signatures a day to meet the 100,000 target. Together we can make this WORK!!!

Link to comment

Hello Sir,

 

I am on H1B and applied for H4 and H4EAD simultaneouly and receipt date was June 2nd 2015.

I got EAD approved on Aug17th 2015, but till now H4 is not approved.

 

As H4 is not approved i could not move on to EAD.

 

What should i do to get my H4 approved.

 

Can you please help me ways to check with USCIS on my H4 approval, thanks

Link to comment

Archived

This topic is now archived and is closed to further replies.