I485 with Employer A while PERM with Employer B is Audited

[gopalat]

Guys

I have an approved I140 (PD 07/23/2008) with Employer A. I moved to a new company Employer B. Employer B applied for a PERM in Nov 2011 and It got Audited in feb,2012

1) Can I file I485 with Employer A (PD is current) while being a Employee of Employer B

2) Do I need to be on Employer A's pay roll to apply for I485

3) I have 2.5 yrs left on H1b (I got H1 extn using Employer A's I140).

[Belle]

1) Yes. You need have a job offer from A.

2) No.

3) And?...

[gopalat]

Thanks Belle. Once I get the GC approved from Employer A, I should be on his payroll right? If yes, how long.

[kalyan_ac]

Yes

[gopalat]

How long? 6mths or up to 1yr

[Belle]

Long enough that the USCIS gets the impression that you wanted to work for them indefinitely. Usually lawyers recommend at least 6 mo to a year.

[gopalat]

Thanks belle

I have one more question

This is If Employer A files my I485 and it gets rejected.

1)If Employer B's PERM gets approved before Employer A's I485 is rejected can I port the date on Employer A's I 140? If yes, can I use that date to file new I 485 with employer B

2)If Employer B's PERM gets approved after Employer A's I 485 is rejected my PERM approval with Employer B is my priority date?

[Belle]

First, I think you did not mean 'rejected', and you meant 'denied'. There is really no way for me to tell which one since both are possible in your case. Second, I would rather not get into theoreticals here because everything will depend on the reason for denial. Such as, you may be able to retain the PD, but depending on the reason for denial, it may not help you at all. So, it will be a totally and complitely different conversation when it happens.

[gopalat]

Thanks Belle.

What I meant was if I 485 is denied. What is the difference between denial and rejection and why it is possible in my case.

If Employer A withdraws I-140 will USCIS revoke I 140. According to my lawyer the employer can with draw I 140 but I can still use priority date unless USCIS revokes I 140.

[Belle]

When you send the petition it can either be accepted, money taken, and the receipt issued, or rejected and sent back. After the petition is accepted, it will be pending, considered on it's merits and either approved or denied.

When the employer withdraws I-140, the USCIS revokes it (nobody else can), however it will not result in a loss of PD. If the USCIS revokes for a cause, like it should not have been approved in the first place, then the PD cannot be retained.

[gopalat]

Thanks Belle

What could be the reason for the application to be rejected (not denied)

[Belle]

Applications are generally rejected if no eligibility can be established. Like, if someone does not have I-140 or I-130 or other reason to file I-485. It may be denied for so many reasons, they may not fit on one page.