Priority date current for one year but no new I-140 filed

[Vijay7878]

Hello everyone.

I was in US from 2002 till 2011 with employer A. I had approved I-140 and used it for H1B extensions during that time. I went back to India in 2011 to take care of family. I came back with employer B in 2016 with one year h1b based on that I-140. My original I-140 is still valid. I was informed that I got one year H1b because my priority date was current at that time. Employer B filed another extension in around December 2016 and got three years extension. I was informed that I got three years that time because my priority date was not current. Then my priority date again got current since March 2017 and has been current since then. However, employer B though a good company but wan't the top company and they still hadn't started my green card process so I changed to a top employer C in August 2017. Employer C got one year extension. Employer C needs some time before starting my GC process.

However, unfortunately no company lawyer or no one told me about following rule which I came to know just recently. That once the priority date is current, I get only one year to file I-485 and if I-485 doesn't get filed within one year of priority date becoming current, I am not eligible for any further H1B extensions if the date remains current for one year. So while employer C is still thinking, I need to know what are my options.

So I am finding that I am eligible to file extension until February 28, 2018 and after that I won't get any more extensions due to priority date current for a year.

Though I want to stick with employer C for long term, some options I could think like

1. Original employer A - However, I believe company has closed its software department.

2.  Employer B - Could check with them but not sure what opportunities they have and whether the extension they filed for which was valid until 2020 is still valid.

3. Employer C - They are still thinking on filing my GC but I should to know my options

4. New H1B in Lottery in April 2018 - what happens to my old H1B and my approved I-140 and its priority date? What are the options if I don't win the lottery.

5. Continue with employer C but also file an H1B extension with employer D by February 2018 for being safe who can start my GC right away?

6. Continue with employer C but start GC process with employer D?

7. Get onto some other visa like F1 while employer C or D start GC?

Please guide me with more options.

Questions:

1. Is this one year rule really real? I am wondering how then one can take benefit of AC21? If I am getting great opportunity in one of the top companies in the world and I have to time it with priority date being current etc. its very difficult. Priority dates go back and forth so much that its not possible to time it and if there is such great career opportunity why one shouldn't take it? Also, companies have their own rules on filing GC they wait to see performance and have backlog of GC in company etc.

2. One year is so short time. What even if I am with my original employer until the date become current but by I-485 gets filed, the company closes or takeovers or mergers or layoffs or just denies to file I-485 or just anything can happen in business and then one has to take his I-140 to some other employer and restart the process and in that case some time from that one year is already past and the remaining time is not enough at all.

3. Do I still keep my I-140 validity and priority date even if employers haven't been able to file I-485 within one year of date becoming/remaining current?

Your suggestions/advise appreciated.

Thanks!

 

 

[Vijay7878]

Continuing above post

8. Challenge this rule in court - It is hard to believe that someone whose priority date doesn't get current can continue staying in US for very long and someone's whose priority date gets current will get only one year otherwise he has to leave US. This rule makes sense if you are with the same employer with whom you get your I-140 approved and priority date gets current while still being with them, then continuing H1B extension don't make sense since you are eligible to file I-485. But once you use AC21 and move to another employer, until you get new I-140 from new employer, this rule doesn't make sense. One year is very short time. My employer C wants to file GC but needs time. It's like wishing that my priority date should never get current. It completely opposite and not intuitive. For analogy, its like saying that if you get picked up in the H1B lottery, you get only one year and if you don't get picked up in lottery you can continue staying and keep trying in lottery every year. Its really hard to believe this rule.

 

[JoeF]

It actually is pretty well known that you can't get 3 years extension when the PD is current. I doubt that challenging it in court would help any.

And the extension employer B filed is gone, because they by law had to inform USCIS that you no longer work there.

For a new H1 in the lottery, you would have to be outside the US for a year before the petition is filed.

Instead of guessing on a forum, schedule an appointment with a good immigration lawyer, and discuss your situation with the lawyer.

[Vijay7878]

Hi JoeF.

Thanks for your response. You are right everyone is aware that you get 3 years extension when PD is not current and one year extension when PD is current. However, I am not getting even one year extension. This rule says that if PD is current for one year and I-485 is not filed within one year, no more H1B extensions are granted(one or three year - none). You are right and I will be consulting some lawyer. One lawyer I contacted didn't have much idea about this rule. But I will look for some good immigration lawyer.

Thanks.

[Vijay7878]

Hi JoeF.

You mentioned - For a new H1 in the lottery, you would have to be outside the US for a year before the petition is filed.

I was outside US from 2011 till 2015. And then I came back on I-140 based h1b extension. So being outside from 2011 till 2015 does it count for new H1B lottery petition or I still have to go outside US again for a year?

Thanks.

[JoeF]

3 hours ago, Vijay7878 said:

Hi JoeF.

You mentioned - For a new H1 in the lottery, you would have to be outside the US for a year before the petition is filed.

I was outside US from 2011 till 2015. And then I came back on I-140 based h1b extension. So being outside from 2011 till 2015 does it count for new H1B lottery petition or I still have to go outside US again for a year?

Thanks.

Since you can back on the old H1, the time abroad has reset to 0.

[JoeF]

The rule is: if you have been abroad for a year, you can reuse the old H1 (if possible) or you can get a new H1 in the quota to reset the time.

Since you used the first option, the time abroad before that is no longer relevant.

To get a new 6 years, you would again be out of the US for a year and then have an employer file a new H1 in the quota.

[Vijay7878]

Thank you JoeF for your response.