Priority Date Is Current - Outside Of Us

[Sn_Raja (Raja)]

My Priority Date: 09/2013, EB2 - opted to file AOS/I-485 in US.

My H1B extension was denied in 2017 (failed to prove ‘employer-employee’ relationship) and moved to India. After 2 years, my employer withdrew my I-140 (which is way more than 180 days of I-140 approval). I’m hoping that my PD may become current in few months or years. Based on my case, I would like to get your valuable feedback on following questions,

1. When my PD becomes current, is my withdrawn I-140 is ‘VALID’ to apply my GC on consular process (NIW) in India?

• If ‘YES’, which are all the documents required from my employer who sponsored my GC? Like offer letter…?
• If ‘NO’, shall I choose to reapply H1B via the same employer,(after H1-B approval) does this require employer to reinstate my withdrawn I-140 or apply new I-140 or restart from PERM?

2. If employer fails to provide any supporting documents for GC consular process, can I submit the documents from a new employer who is willing to offer me a job?

3. Opting to travel US on H1-B (filed via existing I-140); sponsored by ‘NEW’ employer and assume that job duties for GC are also ‘same or similar. Does the NEW employer restart the GC process from PERM or can concurrently apply new I-140, I-485, and port when the priority date becomes current? Any risk for GC denial?

Please share your experience or any insight to make a correct decision.
Thank you.

[Kalpesh_Dalwadi]

@Sn_Raja

When my PD becomes current, is my withdrawn I-140 is ‘VALID’ to apply my GC on consular process (NIW) in India?

No. I-140 is employer petition and so if your employer withdrawn already, the most you can do is port your PD to a new I-140 if you can find a PERM/GC sponsoring employer.

@Sn_Raja

If ‘NO’, shall I choose to reapply H1B via the same employer,(after H1-B approval) does this require employer to reinstate my withdrawn I-140 or apply new I-140 or restart from PERM?

If you join same employer who sponsored your PERM/GC, they can file cap-exempt H1B based on approved I-140. They can also file a new I-140 using the old PERM that was basis of the old I-140 that was withdrawn, provided your PERM job is still the same.

@Sn_Raja

Opting to travel US on H1-B (filed via existing I-140); sponsored by ‘NEW’ employer and assume that job duties for GC are also ‘same or similar. Does the NEW employer restart the GC process from PERM or can concurrently apply new I-140, I-485, and port when the priority date becomes current? Any risk for GC denial?

New employer can file cap-exempt H1B using the approved I-140 but will need to start from PERM. You can file concurrent I-140 & 485 once PERM is approved, and if the PD is current.

[Sn_Raja (Raja)]

Thank you a lot, Kalpesh.