I-485 Pending and Job Change via H1 Transfer


puneriindian

Recommended Posts

Hello,

I am in a very peculiar situation and I wanted to suggestions from fellow members. My priority date of Feb 2010 just got current and my employer is getting ready to file for my I-485 this month.

While this is in process, I have got an unbelievable opportunity somewhere else with almost 40% raise, exciting new position and very good benefits. I am seriously thinking of accepting this opportunity.

My new employer understands that he will have to file for labor and new 140 for me

My questions are:

1) Will there be any problems in the H1 transfer process because this will be alongside my I-485 application with my current employer. I cannot really stop my current employer from filing for I-485 because of all the uncertainty.

2) If during this process, I get biometrics appointments and EADs before the H1 transfer happens, what do I do with them?

3) Can the employer withdraw an applied 485? I thought they could only withdraw I-140. And even if they do that, I can still retain my priority date correct?

Both my new and old positions are full time positions and if it matters, I work in Non-IT - Mechanical Engineering field ...and in my line of work such opportunities are far in between.

All suggestions welcome !

Thanks

Link to comment

When you file I-485, you must intend to work for the sponsoring employer upon approval of the green card indefinitely.

As soon as you sign that job offer, you officially change your intent. You can no longer file I-485.

You have to choose to either file I-485 with the old employer and stay with them, or you need to go to the new employer and start the process from scratch. Even though you may be able to file I-485 and then potentially use AC21, I really can't see this as not being suspicious. And filing I-485 with an employer while preparing to take off and never work for the sponsor may be considered fraud.

You will retain your PD. If your employer withdraws I-140 within 180 days of your I-485 filing, your I-485 will be denied. Unless there are alligations of fraud, you will be able to file another case.

Link to comment

Hi,

I'm in the exactly the same situation as ur's. My new employers lawyer told me that based on an approved I-140 from my current employer (is ur's approved?), I am eligible for a 3 year H1 extension, however if my PD becomes current before filing for extension, then I'll get only an year's extension. You may wanna check on this with your lawyer as well and make sure you can get sufficient time on ur H1 extension, so you can restart you GC process with peace of mind. Also, as Belle has mentioned, GC from an employer is done for someone from a future employment point of view and there can be a risk of your employer cancelling ur I-140. I am also interested in finding out if once a person's GC is approved and he/she moves right away, can the emp[loyer revoke that approved GC?

Good luck!

Link to comment

Yes, I know that and my new employer is willing to re-do the whole process right from applying for a fresh labor and new 140. I cannot really use AC-21 as my 485 is not pending for 6 months.

My question is because the H1 transfer is still not initiated (I have to still accept the offer. The offer came on Feb 29th ... March 1st my priority date got current), my current employer will apply for my 485 right away .. and because of all the uncertainty of H1 transfer process, I cannot really tell my employer ...hey wait for 3 weeks to apply because I am about to accept a new job :)

My question is this:

1) While my 485 is pending can some other employer apply for my H1 transfer. Do you forsee any problems with it?

2) While my H1 transfer is in process and if it becomes a long drawn process what do I do if I get biometrics appointment and EADs?

I understand the implications of changing employers and my new employer knows about it too, and once my H1 is transferred I personally plan on withdrawing my 485 application.

In response to the 2nd reply ... I still have 2.5 years on my current H1.

Responses Appreciated !

Thanks

When you file I-485, you must intend to work for the sponsoring employer upon approval of the green card indefinitely.

As soon as you sign that job offer, you officially change your intent. You can no longer file I-485.

You have to choose to either file I-485 with the old employer and stay with them, or you need to go to the new employer and start the process from scratch. Even though you may be able to file I-485 and then potentially use AC21, I really can't see this as not being suspicious. And filing I-485 with an employer while preparing to take off and never work for the sponsor may be considered fraud.

You will retain your PD. If your employer withdraws I-140 within 180 days of your I-485 filing, your I-485 will be denied. Unless there are alligations of fraud, you will be able to file another case.

Link to comment

First, your emaployer cannot file I-485 for you. You are filing it, and the lawyer is acting as your agent - yours and nobody else in this case. You can call the lawyer and ask not to file I-485. No explanation needed.

Your H1 will not be impacted, but you may be accused of fraud on I-485 filing, which is much-much worse.

Link to comment

My 485 filing is being done by employer's lawyer and handled by HR. Isn't that the case for most of us?

As for the allegations of fraud ... how does it even constitute fraud? I am working for my current employer who is filing for 485. Only after H1 transfer is completed will I be an employee of the new company and will be working for them. Until then I am an employee of the current company. I intend on withdrawing my application as soon as I put in my resignation papers.

You may say is this ethical? I would say ...maybe its not so ethical ..it has got shades of grey..but I think I am well within boundaries of law.

Why would anybody in right frame of mind will stop 485 filing just because his/her H1 transfer is in process? What if H1 transfer gets delayed, gets hit by a RFE or is even denied? What if it takes months to process and the new employer loses his patience and withdraws the job offer ?

First, your emaployer cannot file I-485 for you. You are filing it, and the lawyer is acting as your agent - yours and nobody else in this case. You can call the lawyer and ask not to file I-485. No explanation needed.

Your H1 will not be impacted, but you may be accused of fraud on I-485 filing, which is much-much worse.

Link to comment

Your HR is not touching your I-485, and if they do, it's violation of privacy on the side of your lawyer. YOUR lawyer. If they represent YOU on I-485, they represent YOU.

What you are doing, is coming up with lame excuses, which nobody will care about if you get in trouble. As I have stated, at the time of I-485 filing you must have intent to work for your sponsor upon approval. Whether you work for them now is completely irrelevant, however, your H1 transfer may be considered by the USCIS as evidence that you don't intent to work for your sponsor after approval. Also, once your intent condition is satisfied, there is no need to withdraw your petition, even if your intent has changed. What you are trying to do is put the horse in front of the cart. Honestly, there is a mcu better way of changing the job without misleading anyone and possibly not even asking your new employer to file a new case, but apparently, you seem to know better. So... whatever.

Link to comment

Archived

This topic is now archived and is closed to further replies.