EB3 to EB2 Porting RFE on H1 Transfer

[vidhya reddy]

Hi,

My Husband is in the 6th year of his H1. After working for 5 years his current employer is not willing to port his GC to EB2 from EB3. He got an approved 140 in EB3 with PD as Dec 2004 from current employer.

3 months back he started the EB2 GC process with a new employer. Now after applying for H1 transfer in premium process he got an RFE for Employee-Employer relation ship despite of submitting the client letter. The last date for responding the RFE is Dec 18 2011.

My Questions are

1.Is it advisable to respond to the RFE immediately ?

2.Or Instead of responding to RFE, is it advisable to file labour and I140 within these 2.5 months timeframe(before dec 18,2011). The reason that I'm asking you is there are chances that we might be moved to EAD status before the decision is taken on h1. Is this a good option?

Please advise

Thanks,

Vidhya

[Belle]

You are asking about two absolutely unrelated things. LC/I-140 application is in no way tied to H1. He needs some work authorization to work, obviously, but it really does not matter which.

[vidhya reddy]

Thank you Belle.

Once last question, hope you don't mind

When you say "LC/I-140 application is in no way tied to H1" does this mean even if the h1 approval from new employer gets denied ,can the new employer still proceed further in filing labour and porting I140(This way we can get EAD from new employer atleast) . If this is possible then Until then my husband can work for his current employer.

Is this legal to do. Please confirm

[Belle]

The new employer may file LC/I-140 regardless of beneficiary's status (or the lack of it) or even physical location (in the US or not). Your husband needs to worry about his status only to the degree that he needs to be in status when he files I-485. Does not really matter what that status is (except visitor, most would work fine).

[MyFavourite]

Hi Belle

How do I know whether my case has ported (interfiled) the priority date from EB3 to EB2 .

It's been a month since my attorney sent a porting letter/request to USCIS..

Pls advise

[Belle]

If previous I-140 petition was approved in your husband's name and was not revoked for fraud, your husband will retain the PD. The law says it, so it is not really up USCIS discretion.