Old PD current and new I140 in process-dilemma

[Miami2]

Seeking guidance from the gurus:

- My EB2 PD of Oct 2007 from previous employer just became current. (The employer may have potentially withdrawn the I-140).

- New employer's I-140 is filed under EB2 and currently in process (regular processing) and porting of old PD requested.

a) Can the I-485 be filed based on old priority date given that new I-140 is still under processing and does it have any dependency on successfully porting old priority?

b) Spouse (currently on H4) recently got a job offer with great co. Should she be requesting her new company to file for H1 or should we request them to hold on till EAD is received from the step a).

Thanks for your inputs.

[livliv]

You can try that. Consult an experienced immigration attorney asap, they may be able to help you with a good strategy to approach this.

[Belle]

a) Yes. You can use your PD, period. It really does not matter what the PD is on your second I-140 as long as you have proof that you have the earlier PD.

b) Your preference. File I-485s, see if they are accepted. If that happens quickly, then EAD is her best choice.

[Miami2]

Thanks for the feedback.

a) There seems to be a lots of ambiguity on I-140 PD porting once the previous I-140 is cancelled by employer for any reason. So even if there is the Yates memo.. still the IO may or may not port the previous PD.

Assuming the worst case in which that the previous PD does not get ported :

- What are the ways to contest that decision with service center and re-request the porting of previos PD if I-140 was cancelled?

- Can the 485 still be filed if the PD is not current per new I-140 but is current per the previous cancelled I-140 ? Would the 485 case be accepted in such case ?

Thanks.

[Belle]

You should not care about the PD on the I-140. All you need to care is that your I-485 is assigned the earlier PD. For that, you just need proof of the PD. See my answer above.

[Miami2]

Thanks Belle.. I do have the copy of old I-140 with the 2007 PD.