H1B extension after 6 Year and I-140 revoked

[vijayshree]

My GC processing was started in EB3 category and got I-140 approved 3 Years back and this year employer filed for H1B extension after 6 year (already completed 6 years on H1B). While filing my PERM, company lawyer did not give the advertisement but still my PERM and I-140 was approved. Now USCIS found that advertisement was not given. I don't know the consequences yet. I am still with same company. I have following questions:

1) What will be the impact on my PERM and I-140 because of failure to give advertisement?

2) Will this impact H1B extension?

3) If USCIS ask to restart GC processing can I file under EB2 category?

4) If filed in EB3 again will priority date remain same as before and can it be in premium processing?

[ateetshah]

My GC processing was started in EB3 category and got I-140 approved 3 Years back and this year employer filed for H1B extension after 6 year (already completed 6 years on H1B). While filing my PERM, company lawyer did not give the advertisement but still my PERM and I-140 was approved. Now USCIS found that advertisement was not given. I don't know the consequences yet. I am still with same company. I have following questions:

1) What will be the impact on my PERM and I-140 because of failure to give advertisement?

2) Will this impact H1B extension?

3) If USCIS ask to restart GC processing can I file under EB2 category?

4) If filed in EB3 again will priority date remain same as before and can it be in premium processing?

1) Start from scratch again. Absolutely no doubt.

2) Since I-140 can be revoked anytime due to fraud or misrepresentation, H1-B extension will be a problem.

3) Yes since PERM process was not followed the way it should, it has to be from scratch again.

4) Since your PERM process is invalid, you might lose your priority date. Please ask qualified immigration attomey.

Also let your company or employer lawyers handle this.

[vijayshree]

Thanks for quick reply. Now first I want to get H1B Ext. H1b Ext was file in normal processing. Is it advisable to switch that to premium processing?

Also how safe it is to start GC (PERM and I-140) in premium processing?

[ateetshah]

Thanks for quick reply. Now first I want to get H1B Ext. H1b Ext was file in normal processing. Is it advisable to switch that to premium processing?

Also how safe it is to start GC (PERM and I-140) in premium processing?

Suggest you try premium processing, but if your I-140 comes as revoked on which you are filing for H1 extension, you are out of luck.

On 2nd point, please talk to your employer and his attorney.

[vijayshree]

Lawyer gave Adv for some of applications and missed for some. I don't know exact status about my case yet. H1B extension is already filed just before we come to know about Adv failure. On USCIS site my I-140 still show approved. In worst case if my I-140 get revoke what are the option I have to maintain my H1B status? I am completing 6 year on H1B this year Oct.

[gcaspirant9]

ManOfSteel,

 

I am also in the same boat except mine was filed under EB2 category. I am waiting to speak with the lawyer to understand the consequences.

[vijayshree]

I have got 3 years extension. Lawyer is saying USCIS has sympathy for us. Company has filed new PERM for me. Any chance USCIS will allow to retain previous priority date? Lawyer is saying they are checking with USCIS on retention of priority date.

[jairichi]

I have got 3 years extension. Lawyer is saying USCIS has sympathy for us. Company has filed new PERM for me. Any chance USCIS will allow to retain previous priority date? Lawyer is saying they are checking with USCIS on retention of priority date.

Unless GC process is revoked based on intention to commit fraud PD can be retained.

[Attorney_15]

This sounds just like one of those instances when talking directly with a lawyer for a second opinion is likely a good idea. A PERM application is electronically filed so the ads are never submitted when the application is filed; even if an employer files a paper copy of the ETA Form 9089, the DOL specifically prohibits submitting any ads. Ads are only supposed to get submitted to DOL if and when the case is audited. If it is not audited then it the ads never get submitted. Furthermore, it is quite possible that a USCIS officer would not know this.

[vijayshree]

Since my company is dealing with law firm, we don't have much detail what is going on inside and how law firm is approaching USCIS for this matter. But the law firm has filed the case against that lawyer so I believed USCIS might had reviewed all cases handled by him. Based on that law firm decided to file new PERM for affected cases.