Proposed Rule Changes Affecting EB1, EB2 & EB3.

[Nitikavi]

Hi Back in Sept Oct if last yr, USCIS implemented a rule by which certain people with approved I 140s were eligible for EADa. The initial cut off date was Jun 2011. They changed the date in the next bulletin to Jun 2009. That date has not moved in the last couple of bulletins. Isbthat rule now defunct? I guess i am struggling to understand the EAD based on that rule vs what is proposed in the new I 140 EAD rule. Can someone pl clarify?

[vinay1285]

Hi, i have my 140 approved with PD april 2013. I am planning to kove from employer A to B. As of now, we will need to apply for perm and 140 with employer B. But with the new OEM rule, can i be benefited by porting my perm and 140? In other words, can i just transfer to employer B instead of doing it from the beginning?

Thanks.

[Sammy_mnu]

My I-140 approved in EB-2 category 6 months before.i.e., more than 180 days.

What are all the benefits one receives in this scenario from the new rule? Please advise.

[Attorney_22]

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. 

Below I have pasted excepts from the proposed rule applicable to your concern:  

 

“the proposed rule would provide the ability for individuals to apply for employment authorization for 1year when they meet all of the following criteria: (1) the individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization…employment authorization generally would not be available to a nonimmigrant if the tendered compelling circumstance is within his or her control…”

 

And has given four examples of what is compelling:

 

"Serious Illnesses and Disabilities. The nonimmigrant worker can demonstrate that he or she, or his or her dependent, is facing a serious illness or disability that entails the worker moving to a different geographic area for treatment or

otherwise substantially changing his or her employment circumstances.

Employer Retaliation. The nonimmigrant worker can demonstrate that he or she is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency

or court, and the employer has taken retaliatory action that justifies granting separate employment authorization to the worker on a discretionary basis.

Other Substantial Harm to the Applicant. The nonimmigrant worker can demonstrate that due to compelling circumstances, he or she will be unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm. Such circumstances, for example, may involve an H-1B nonimmigrant worker who has been applying an

industry-specific skillset in a high-technology sector for years with a U.S. entity that is unexpectedly terminating its business, where the worker is able to establish: (1) that the same or a similar industry (e.g., nuclear energy, aeronautics, or artificial intelligence) does not materially exist in the home country, and (2) that the resulting inability to find productive employment would cause significant hardship to the worker and his or her family if required to return home. In such circumstances, the employment authorization proposal would provide the individual with an opportunity to find another employer to sponsor

him or her for immigrant or nonimmigrant status and thereby protect the worker and his or her family members from the substantial harm they would suffer if required to depart the United States.

Significant Disruption to the Employer. The nonimmigrant worker can show that due to compelling circumstances, he or she is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate

employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

[Attorney_22]

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

It is advisable to discuss this issue directly with the attorney who filed your H1B and H4 with H4EAD. 

[Attorney_22]

Anyone??

There are many possibilities based on your personal circumstance, therefore it is advisable to speak directly with an experienced U.S. immigration attorney. 

[Attorney_22]

Hi Back in Sept Oct if last yr, USCIS implemented a rule by which certain people with approved I 140s were eligible for EADa. The initial cut off date was Jun 2011. They changed the date in the next bulletin to Jun 2009. That date has not moved in the last couple of bulletins. Isbthat rule now defunct? I guess i am struggling to understand the EAD based on that rule vs what is proposed in the new I 140 EAD rule. Can someone pl clarify?

What you may be referring to is the ability to file your Adjustment of Status application ("AOS") which permits applicants to concurrently file for EAD work authorization. This is still applicable, however an individual can only file their AOS when eligible to file on Section B and USCIS is accepting applications, or Section A of the visa bulletin.  

[Nitikavi]

Hi Back in Sept Oct if last yr, USCIS implemented a rule by which certain people with approved I 140s were eligible for EADa. The initial cut off date was Jun 2011. They changed the date in the next bulletin to Jun 2009. That date has not moved in the last couple of bulletins. Isbthat rule now defunct? I guess i am struggling to understand the EAD based on that rule vs what is proposed in the new I 140 EAD rule. Can someone pl clarify?

Can someone help please?

[Attorney_22]

Hi, i have my 140 approved with PD april 2013. I am planning to kove from employer A to B. As of now, we will need to apply for perm and 140 with employer B. But with the new OEM rule, can i be benefited by porting my perm and 140? In other words, can i just transfer to employer B instead of doing it from the beginning?

Thanks.

Unless you also have a pending I-485 and the new position qualifies for AC21, the new proposal, as currently written, does not forego the need to file a new PERM.  

[itzraj]

My PD is May 2012 and my I-140 has approved on Dec 2012. I have moved to new employer on Feb 2014 and then my previous employer has revoked the approved I-140. I have the following 2 questions now.

1, Whether do I able to apply H4 EAD for my wife using the I-140 approval from the previous employer. Do I receive any query or my application will be rejected for any reason?

2, My current employer is already filled PERM and it is waiting for approval. When he files I-140, do I able to port the PD date by using previously approved I-140, which was revoked by my previous employer?

 

Thank you for your time on this.

[Neda]

There are many possibilities based on your personal circumstance, therefore it is advisable to speak directly with an experienced U.S. immigration attorney. 

Why on earth DHS has created new loopholes and complex scenarios under this rule? Don't they have any brains?

 

Its clear that this rule is only beneficial for shady employers and greedy attorneys. And let's see whether moderator has guts to approve this post or not?

[Softdev]

My PD is May 2012 and my I-140 has approved on Dec 2012. I have moved to new employer on Feb 2014 and then my previous employer has revoked the approved I-140. I have the following 2 questions now.

1, Whether do I able to apply H4 EAD for my wife using the I-140 approval from the previous employer. Do I receive any query or my application will be rejected for any reason?

2, My current employer is already filled PERM and it is waiting for approval. When he files I-140, do I able to port the PD date by using previously approved I-140, which was revoked by my previous employer?

 

Thank you for your time on this.

Any answer to this ? 

[user9999]

Dear Murthy Team, 

Thank you so much for all your hard work in helping immigrants. Your work greatly appreciated!

 

My Profile Summary

- Working on H1 for past 7 years

- I-140 is approved and Priority date is Oct-2011(EB2)

- Working for Same employer for the past 7 years 

 

My Questions 

- If i change the employer, What are the things new employer will be entitled to do in my case, Besides H1 Transfer ? Particularly for Green Card/ EAD in my case

- Besides H1 Transfer, Does new employer has to be responsible for filing I-140 and Perm Again ? Or Could i use the existing I-140 from old employer ?

-Can new Employer file for I-485 by making use of I-140(Applied by old employer) once my priority date becomes current ? 

 

Thank you so much Again for taking your valuable time in helping us. Wish Murthy Team a Happy new year!

Best Wishes,

Shash

 

 

 

 

 

[sarran]

Hi,

 

I’m currently on h1b with approved I-140 since 5+ years. I have been working with the same employer since 10 years (no change of h1b since starting). My employer has cut my paycheck for past 5 months because one of the previous clients did not pay to him. That’s why I’m not interested to work with him going forward.

 

If I will move to a new employer, Would my spouse’s H4-EAD be valid after I get h1b approved from the new employer?    

 

Does the proposed rule helpful in my situation to get an I140 EAD once rule is in force in case I do wait till the rule comes into action ? 

 

[pm_430]

Hi,

 

I have my I-140 approved for more than 2 years now with my current employer. If I change my employer now (or get fired from my current sponsoring company) before the proposed rule comes into effect and join a new company and then my current employer (my PERM & I-140 sponsoring company) withdraws my I-140 and it is revoked by USCIS before the proposed rule comes into effect,  can I still use the new proposed rule for porting my old priority date  when my new employer files new PERM and I-140 even if the proposed rule comes into effect after my old I-140 is withdrawn and revoked?

Does the timing matters (before or after the proposed rule comes into effect) for when to leave the current employer?
 

Would appreciate if you can please answer the above question assuming the proposed rule is going to be same when it becomes as a final rule and suggest what should be the ideal approach I should follow.

 

Thanks,

PM

[Attorney_22]

Dear Murthy Team, 

Thank you so much for all your hard work in helping immigrants. Your work greatly appreciated!

 

My Profile Summary

- Working on H1 for past 7 years

- I-140 is approved and Priority date is Oct-2011(EB2)

- Working for Same employer for the past 7 years 

 

My Questions 

- If i change the employer, What are the things new employer will be entitled to do in my case, Besides H1 Transfer ? Particularly for Green Card/ EAD in my case

- Besides H1 Transfer, Does new employer has to be responsible for filing I-140 and Perm Again ? Or Could i use the existing I-140 from old employer ?

-Can new Employer file for I-485 by making use of I-140(Applied by old employer) once my priority date becomes current ? 

 

Thank you so much Again for taking your valuable time in helping us. Wish Murthy Team a Happy new year!

Best Wishes,

Shash

Based on the current proposal, without a pending I-485 that will allow you to utilize the provisions of AC21, your new employer will need to sponsor you for a new PERM and I-140. However, a benefit of the new proposal makes it clear an earlier priority date can be retained even when the prior I-140 was withdrawn by the sponsor. This is at least some good news because prior to the proposal this benefit was in question after a court case decided against this interpretation. 

[Attorney_22]

 

Hi,

 

I’m currently on h1b with approved I-140 since 5+ years. I have been working with the same employer since 10 years (no change of h1b since starting). My employer has cut my paycheck for past 5 months because one of the previous clients did not pay to him. That’s why I’m not interested to work with him going forward.

 

If I will move to a new employer, Would my spouse’s H4-EAD be valid after I get h1b approved from the new employer?    

 

Does the proposed rule helpful in my situation to get an I140 EAD once rule is in force in case I do wait till the rule comes into action ? 

 

 

In your situation, it may be possible to get the temporary EAD after the rule is implemented, but as proposed this would only be a temporary fix. You may need to eventually get back into H1B. Regarding the H4EAD, as long as you maintain H1B status and your spouse maintains H4 status, your spouse's H4EAD will remain valid within the correlating validity periods. 

[Attorney_22]

My PD is May 2012 and my I-140 has approved on Dec 2012. I have moved to new employer on Feb 2014 and then my previous employer has revoked the approved I-140. I have the following 2 questions now.

1, Whether do I able to apply H4 EAD for my wife using the I-140 approval from the previous employer. Do I receive any query or my application will be rejected for any reason?

2, My current employer is already filled PERM and it is waiting for approval. When he files I-140, do I able to port the PD date by using previously approved I-140, which was revoked by my previous employer?

 

Thank you for your time on this.

Pursuant to the new proposal, the withdrawn I-140 can still be used for H1B extensions, and should be a basis for an H4EAD. The priority date will also be eligible for retention. 

[guthikv]

Hello,

 

I have an approved i-140 and my wife is on H4 EAD. One question I have is:

 

If the proposed rule is implemented what will  happen to H4 EAD, if I plan on changing the jobs and the new employer hasn't started the green card process yet and my current employer hasn't revoked or withdrawn the i-140 petition.

 

Will the H4-EAD be still valid and my wife can continue to work while I am with the new employer?

 

Thanks in advance.

[ariv_anand]

Can someone comment on when this rule will become effective ? What are the next step on this proposed rule to become effective ? Will it become effective after the comment period (60 days) is over ?

[Attorney_22]

This article may be helpful for a better understanding of the proposed I-140 EAD rule: http://www.murthy.com/2016/01/08/i-140-ead-proposal-is-limited-and-restrictive/

[Attorney_22]

Hello,

 

I have an approved i-140 and my wife is on H4 EAD. One question I have is:

 

If the proposed rule is implemented what will  happen to H4 EAD, if I plan on changing the jobs and the new employer hasn't started the green card process yet and my current employer hasn't revoked or withdrawn the i-140 petition.

 

Will the H4-EAD be still valid and my wife can continue to work while I am with the new employer?

 

Thanks in advance.

Yes, in that circumstance your wife's H4EAD should still be valid provided you continue on H1B and she in H4.  

[pv111]

thank you all for wonderful information and discussion here !! wanted to know if somebody has rough information on when this rule might come into impact based on some previous analysis of similar rules ? that will be a very helpful. thank you !

[ariv_anand]

Can someone comment on when this rule will become effective ? What are the next step on this proposed rule to become effective ? Will it become effective after the comment period (60 days) is over ?

Why is no one responding to this post ? It would be great if we can get some idea on this ?

[sarran]

Thank you very much for your response!

I have a question. Under the new proposed rule, Will the following scenario be an issue?

 

If I change to a new employer and the employer files a new Labor Application with different title/responsibilities (but SOC/O*NET codes are under same occupation group. for example :  15-1051.00 vs 15.1121.00 or 15.1141.00) than what I have in the existing Labor through previous employer, Would that still retain my existing priority date ?

 

If the above scenario happens before the proposed rules comes into action, will that be problematic?