Retaining a priority date (PD) is possible, but is NOT retaining a PD also possible?

[FingersXssed]

Dear experts/Attorney,

Thank you for reviewing this question. My question is, can a candidate choose to NOT retain their original PD and instead use the date from a subsequent I-140?

Here's my situation:

Employer A (EB2): I-140 (Feb 2009)

Employer B (EB2): I-140 (notice date: May 2014, but retained PD from above)

Employer B filed I-485 when the PD was current in 2014, but the dates were retrogressed before adjudication. I resigned from my job and moved out of the US in Dec 2017. My PD became current around Jun 2018 and Employer B received RFE to provide an updated medical record and an offer letter. Since I was no longer with the company or in the US with any immediate plans to return, I requested Employer B to withdraw the I-485, which it did with an acknowledgment from USCIS in Jun 2019. My 6 years on H1 have expired.

Now I am back in the US on F1 and was wondering whether a potential new employer C can file for my H1(cap-exempt) extension/transfer using my existing I-140s (still in approved status on the USCIS website). After searching on this forum, it appears this is a possible path. However, there seems to be the caveat that my PD should not have been current for more than a year. But of course, my PD from my original I-140 has been current for over 3-years now.

So, my questions are: 1) Considering the above, what are my options to start working for any employer incl. A, B, or C? 2) Can I choose to ignore my original PD (Feb 2009) and use the later date from the I-140 by Employer B (May 2014) to extend my H1 to start working for a new employer C? 

thanks much,

FingersXssed

 

Edited December 20, 2023 by FingersXssed

[Attorney_15]

Interesting problem. There is an argument one could try and make that since that PD was current for more than 1 consistent year, it is no longer valid for transfer to the more recent I-140, and that based on the non-current PD you qualify for the extension. An argument such as this could be presented with the H1B Petition filing. In a situation such as this, Murthy Law Firm would recommend filing the petition in premium processing to get the question addressed & resolved quickly. If you are interested in hiring Murthy Law Firm to make this argument for you and your proposed employer you should contact us. This is probably the best time of year to try this out because there is enough time to prepare and get a decision on an H1B (with premium processing) before the H1B lottery opens up.

[FingersXssed]

Dear Attorney_15, thank you very much for the response and the suggestions . One quick follow-up question, is there a scenario where I can use the original PD (Feb 2009), even though, it's been current for over a year? I didn't come across any concrete information on what actually happens if one does not apply for a COS/I485 after the PD becomes current.

thanks!

FingersXssed

 

[Attorney_15]

@FingersXssed your scenario is not specifically addressed and is gray area. One might need to litigate that question in federal court though if USCIS denies the request on approving a new I-140.