-- Q&A 5/22/06--
Q- Here are the facts: 1. Approved I-140, EB3, PD of June 2002 2. In 9th year, H1B extension for 3 years valid until April 2009 3. Opted for Consular Processing 4. Want to change employer. (1.) Can I transfer my H1B visa? (2.) Can new employer file new PERM under EB2/ EB3 category? (3.) Can I keep the old I-140 PD (even if new category is EB2)?
A- Your questions all have to do with benefits available under the American Competitiveness in the Twenty First Century Act (AC21). The Act was passed in 2001 and as yet there are no regulations to interpret it. All we have are interpretive memoranda from legacy INS which are not binding in a court of law. Therefore, in relying on any AC21 benefits you are taking a risk. That said, following are answers to your questions based on current USCIS
guidance:
1. A new employer can file a new H-1B petition on your behalf and you can go to work for the new employer as soon as the new H-1B is received by USCIS. The fact that the H-1B petitioner is a different petitioner than the I-140 petitioner does not matter; AC21 still applies to allow you to extend your stay past the traditional 6 year maximum. HOWEVER, this only remains true so long as the employer that filed your approved I-140 petition does not revoke it. If it is revoked, I do not believe that it would support additional extensions of your H-1B status.
2. Yes. The filing of a new PERM application does not appear to alter your ability for additional H-1B extensions under AC21. But if the I-140 petition is withdrawn you lose eligibility to extend your H-1B status.
3. You can retain the priority date from the first I-140 petition but only if the old I-140 petition is not withdrawn. It would appear that if the second I-140 is approved before the three-year H-1B expires, then the second I-140 petition could support another H-1B extension in the future.
Q- I am a Nurse from India and sheduled for visa appointment next week for EX category. My question is my name in my birth certificate and all other dox is Reena Shalet D'souza and only in my CGFNS certificate the name is mentioned as Reena Shalet Maria D'souza,this is b,cause during the CGFNS application they have asked whether i am known in any other name and i mentioned as Maria and I din't expect that they will mention that in my CGFNS certificate. Is this going to be a problem during the interview,please advise.
A- It may be possible to get CGFNS to issue a corrected certificate to you. However, since your visa interview is next week and you don't have much time, my suggestion would be to use the CGFNS certificate you have, and make sure that on your visa application forms, where it asks you if you have ever used any other names, you include "Reena Shalet Maria D'souza."
I have seen several cases where people's names are recorded differently on different official documents. So long as all names are used on the visa application forms, I don't think it will be a problem. If it is a problem, the consulate could give you a "soft" denial of your visa application form until you can get a corrected CGFNS certificate. You would then be able to go back for a subsequent interview at the consulate after receiving a new CGFNS certificate. However, I doubt that a denial of the case will happen.
Q- Is I-824 mandatory for family based immigrants for Montreal consulate, if we sent letter changing address before approval?
A- If the CIS was properly notified, the I-130 should be sent to the National Visa Center for processing at Montreal. However, this is often not done correctly, so you woul dneed to wait for the approval notice to see whether it was sent to the National Visa Center or not. If not, you would need to file the I-824.
Q-I am in my 5th year of H-1B. Because I changed jobs a number of times, I've lost whatever my previous employers have done for me in terms of green card applications. Now I plan to start it all over again and fileLC application (PERM) prior to the start of my 6th year of H-1B status. My question is, IF my LC is approved and consequently I file an I-140 in, say August, will I be able to extend my H-1B visa? Because the I-140 is filed less than 365 days before my 6th year of H-1B expires. I am confused by this scenario. Thanks again and look forward to your answer.
A-Under the American Competitiveness in the Twenty First Century Act (AC21), anyone whose labor certification for I-140 petition is filed 365 days prior to the end of the 6th year of H-1B status, and who has not yet been granted permanent residency by the end of the 6th year, can extend H-1B status indefinitely in one year increments until permanent residency is granted.
If your labor certification is filed 365 days prior to the end of your 6th year of H-1B status, then you can file for a 7th year extension of H-1B status regardless of whether the labor certification application has been approved or remains pending. When filing for your 7th year extension, you would submit a copy of your labor certification approval, plus the receipt notice of your I-140 petition. It doesn't matter that the I-140 hasn't been pending 365 days as long as the labor certicfication was FILED 365 days ago and you haven't gotten your green card yet. I hope this helps.
Q- My adjustment of status together with my depends were approved just before the EB3 retrogression. However, those for my other 2 kids are pending until now. Are they affected by this retrogression? I thought this applies to the principal applicant.
A- As your derivatives, your children are eligible for immigrant visas under the same visa category as you. Retrogression in your visa category therefore affects your dependent children as well. They are not eligible for immigrant visas until a visa number becomes available for them, even though you already have your green card.
