Wednesday, January 19, 2011

How to know if old I-140 has been revoked by previous employer?


Wednesday, January 19, 2011 | , , , , ,

If an individual filing a green card under employment-based category has changed job and now planning to port priority date from previous filed Labor certification, he will at least need an approved I-140 from previous employer to recapture priority dates.

As per Yates Memo, in the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent I-140 immigrant visa petition in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. So, unless case is revoked due to fraud, you should be able to recapture old priority date.

But there are many cases with USCIS, where old priority date is not recaptured on new filings even if previous employer revokes old approved I-140 due to retaliation or due to company's policy to annually revoke cases for former employees. In these circumstances, employee or new employer should call National Service Center and talk to representative and remind them about Yates Memo, which clearly says earliest priority date should be recaptured unless petition was revoked due to fraud or misrepresentation. If you will talk to them nicely and puftorth your case by referencing Yates Memo, you might be able to convince them to recapture old PD. See excerpt from Yates Memo below.


From: William R. Yates

Date: 09/23/05

Re: Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of H-1B Status Beyond the 6th Year.

Revisions to Adjudicator’s Field Manual (AFM) Chapters 22.2(b)(2), 22.2(b)(3)(B), 22.2(b)(3)(F), (22.2(b)(5) and 33.3(g)(8) (AFM Update AD 05-15)
.....
In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification

How to know if old I-140 has been revoked by previous employer?

There is no easy way to know if previous employer has revoked your old approved I-140. The best way to know this is to call your previous employer or attorney and see if your previously approved I-140 is still good. If that is not an option, other way to predict this is to check if there is any 'Soft LUD' on your previously approved I-140. If there is no update on your case status after final action (i.e. approval notice sent date), then you may be in good shape and your I-140 is still good. Please see '. Other than this there is no better way to know status on previously filed petition.



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6 comments:

Anonymous said...

Great article. Thank you for writing this. Information about Yates Memo is great.

CM said...

We are glad that we were able to provide useful information.


Anonymous said...

Great article. Thank you for writing this. Information about Yates Memo is great.

Anonymous said...

good day.

just would like to ask, how will an EB3 applicant know that his/her case has been abandoned by the employer even if it has been confirmed by the NVC that his/her case has been documentarily qualified already? thanks for the response.

one more thing, if an EB3 applicant's Priority Date is already "current", how long will he/she wait for the notice of appointment to arrive? thanks for the response.

CM said...

During the interview they will ask the applicant for the job offer letter. It is expected that you have recent job offer or verification letter. If one has that consulate would not know that employer has no intention to hire applicant anymore unless employer has informed consulate or NVC of his intent.

Usually notice of appointment should arrive same month when you will get current. This is based on an assumption you are documentarily qualified. If individual does not receive appointment within few days after being current, he/she should contact NVC to inquire on their status.




Anonymous said...

good day.

just would like to ask, how will an EB3 applicant know that his/her case has been abandoned by the employer even if it has been confirmed by the NVC that his/her case has been documentarily qualified already? thanks for the response.

one more thing, if an EB3 applicant's Priority Date is already "current", how long will he/she wait for the notice of appointment to arrive? thanks for the response.

CM said...

We are glad that we were able to provide useful information.


Anonymous said...

Great article. Thank you for writing this. Information about Yates Memo is great.

Anonymous said...

This seems very tempting however one must not forget that to apply for citizenship one has to fulfill the employment contract. So i would not agree with CM on the tip to proceed without the actual job even if the visa may be granted due to a poor update or a bad check.

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