EB2-3 Predictions (Rather Calculations)

[soopergal]

folks can share "suggestions" if we know whats exactly the case is. Immigration process has its own jargon and forum users are so used to it. Let me take a crack here

Based on your post it seems your status in Oct was H4 and you were planning to join Comp-A on H1 and got 3 yr approval. But they will not start GC till 2022, so you are looking to join comp-B in Dec who is willing to start GC process on Day-1. Is this correct? If yes, then read fwd otherwise share your visa status as of NOW

As Idliman mentioned, you have to start your perm 1st and then 140/485 together if dates are current. As you will be joining within 3-4 weeks, my recommendation will be to start working with your future employer Immigration team and kick off your perm process. First phase has lots of documentation collection (job role, experience letters, EB2/3 determination, prevailing wage determination) which may take 3-4 months so start now esp the document collection part, instead of waiting for your start date.

I am surprised you got 3 yrs H1 as your dates were current. It maybe coz company didn't filed for your Perm and I-140 yet. Well it doesn't matter now, you will be eligible for unlimited 1-yr extension till your GC process is complete (approval of I-140 and then I-485). Company just have to show your case is filed and USCIS will take care of it next. As company will be spending on yearly H1 extension, its in their best interest to start their GC process ASAP.

thanks so much for your response monsieur. Yes you're right about this "your status in Oct was H4 and you were planning to join Comp-A on H1 and got 3 yr approval. But they will not start GC till 2022, so you are looking to join comp-B in Dec who is willing to start GC process on Day-1"

I am slowly getting back to conversing in GC lingo recently - I guess the Trump years made me completely go out to touch with tracking GC progress.

Thanks for confirming that I will be eligible for unlimited 1 year h1b extensions until I get GC in hand. I was kind of panicking about the whole 1 year limit thing.

[Spectator]

I've updated the figures at:

(a) Live Discussion (Selected Statistics) which everyone can see.

(b) FACTS & DATA PERM/Labor Data which you need to be signed in to view.

[qesehmk]

I wish everybody a very happy Diwali. May your life fill with joy, happiness, and prosperity. May you all get approved coming year - especially with the Nadler/Lofgren proposed provision as it relates to country caps.

Diwali.jpg

[soopergal]

Dear Kara Zor-El,
There are two main options for you. 1) Stay with current employer 2) Work with the new employer.

Stay with Current Employer (for a minimum of 180+ days after I-485):
Obviously you would stop the process of moving to a new employer. Your PD is FA current. You will file I-485 ASAP and stay with the same employer for 180 days from the "Received Date" of I-485. This entitles you to the provision of AC21 job portability. Also locks the age of dependent kids. You don't have to do PERM and I-140 anymore. All you need is a justification that the job is in the "same or similar" classification (aka I-485 Supplement J form). Also you get the EAD/AP benefit with a pending I-485. This is a good backup to H1B. Even if you take a 20% pay cut, I would advise anyone to do this and somehow stay employed with same employer for 180 days after I-485 has been filed.

Move to new Employer:
You would do this only if your current employer is refusing to file I-485 (if this is happening, feel free to ask; there may be ways to address this) or your new job is super awesome (that you don't care about GC). In this case, you need to redo PERM and I-140. This would take 1.5 years or so. Then you will file I-485. Not a smart decision as your PD is FA current.

Stay with Current Employer, File I-485 and then move before 180 days:
In this case you will not be eligible for AC21 portability. AC21 is the most important benefit of filing I-485 (before getting card approval). I would advise anyone against doing this.

H1B Extension:
When your PD is FA current, you can get only 1 year extension of H1B. It does not matter if you are with the same employer or a different employer. H1B extension is independent of I-485. H1B is non-immigrant visa. GC is immigrant visa. But you need to make sure that you maintain compatible statues.

Filing I-485:
Once your PD is FA current you can file I-485. Don't know much about Consular Processing. But why would someone wait to file I-485 once the PD is FA current? You shoud do it even if your DF is current. As AC21 law gives so much protection to those people who had filed I-485 after 180 days.

If you have more specific scenarios, please ask. Your question seems too broad. Once you read more and understand the process, you will have the knowledge to analyze the situation and make a decision. Good Luck.

Hi Idliman,

here is what the new employer's attorney came back with :

"To clarify, if we proceed with the H-1B Change of Employer we would only be able to ask for a year 1 extension on the H-1B. I wanted you to understand the risks involved here since you have a much longer approval period currently. That 1 year would pose a very tight timeline to get to the I-485 stage and will most likely still result in a significant gap in work authorization.

We could in theory onboard you in H-1B status and then look to file a change of status to H-4 with an H-4 EAD, but even that could take more than a year to process. There is also no guarantee the H-4 EAD would be approved as the same time as the H-4 (meaning no work authorization).

Please let us know how you would like to proceed. My general recommendation for anyone would be to ensure they have long term work authorization and have enough status remaining to get to the final green card stage (I-485). As you?ve done PERM before, you understand that 1+ year for PERM is very normal and could take longer to even get the PERM approval (let alone the I-140/I-485).

Now, your Priority Date may not be current by the next time you?re up for an H-1B extension, but of course there is no way to predict that. That is risky to bank on. For now, the safest approach is to assume your priority date will stay current throughout the next year and foreclose any ability to continue to extend the H-1B.

Please let us know if you have any other questions. The team will for now continue with the H-1B change of employer, but if you decide to stay with your current employer please be sure to speak with your recruiter and notify us as well."


A little perplexed at this :

my question is how was my current employer able to receive 3 years on h1b if my dates were current? and if they can then why can't the new employer get the same? any thoughts on this...

also it looks like the attorney is saying from here on out I can only get 1 year H1b approval - just ONCE. Not sure why that is? I guess monsieur here said I could unlimited 1 year extensions until I get GC? I must have misinterpreted something.

[gammaray]

Hi Idliman,


A little perplexed at this :

my question is how was my current employer able to receive 3 years on h1b if my dates were current? and if they can then why can't the new employer get the same? any thoughts on this...

also it looks like the attorney is saying from here on out I can only get 1 year H1b approval - just ONCE. Not sure why that is? I guess monsieur here said I could unlimited 1 year extensions until I get GC? I must have misinterpreted something.

That is correct, I think the Trump admin revised the regulations in 2017 and you get only one 1-year h1b extension if your I-485 is applied more than 1 year of the FAD becoming current ( I believe the clock resets if the FAD is retrogressed anytime within that 1 year). If the I-485 is applied within 1 year of the FAD being current then I think you can do multiple 1-year h1b extensions till the I-485 is approved.

If you have to do the PWD and PERM stages then it's likely the I-485 application won't be ready before the 1 year period from the FAD being current is over. Especially if there is an audit on the PERM.

Since your date just got current, likely it was an USCIS oversight to allow for a 3 year h1b extension for the current employer.

[soopergal]

That is correct, I think the Trump admin revised the regulations in 2017 and you get only one 1-year h1b extension if your I-485 is applied more than 1 year of the FAD becoming current ( I believe the clock resets if the FAD is retrogressed anytime within that 1 year). If the I-485 is applied within 1 year of the FAD being current then I think you can do multiple 1-year h1b extensions till the I-485 is approved.

If you have to do the PWD and PERM stages then it's likely the I-485 application won't be ready before the 1 year period from the FAD being current is over. Especially if there is an audit on the PERM.

Since your date just got current, likely it was an USCIS oversight to allow for a 3 year h1b extension for the current employer.

Thanks Gammaray. I wasn't aware of this.

So in this case how can someone file their 485? (just hope and pray that the dates retrogress?)

What happens if I am not able to get H1b extension after 1 year and don't have an approved PERM?? Do I start with H1b lottery?

[gammaray]

Thanks Gammaray. I wasn't aware of this.

So in this case how can someone file their 485? (just hope and pray that the dates retrogress?)

What happens if I am not able to get H1b extension after 1 year and don't have an approved PERM?? Do I start with H1b lottery?

You cant file for an "Adjustment of Status" if you can't remain in the country in a valid non-immigrant status. You will have to leave the country, wait till the PERM and I-140 are approved and apply for consular approval for the green card. Hence the lawyer's indication that there could be a significant gap in employment.
You need to discuss clearly with your lawyer and decide the way forward. (To me it seems clear what the lawyer is suggesting -- changing employers at this stage opens you to a lot of risk in the future. And by future I mean in the next 1 year.)

[soopergal]

You cant file for an "Adjustment of Status" if you can't remain in the country in a valid non-immigrant status. You will have to leave the country, wait till the PERM and I-140 are approved and apply for consular approval for the green card. Hence the lawyer's indication that there could be a substantial gap in employment.
You need to discuss clearly with your lawyer and decide the way forward. (To me it seems clear what the lawyer is suggesting -- changing employers at this stage opens you to a lot of risk in the future.)

Thanks Gammaray. Appreciate your inputs.

I also have a pending H4/H4EAD application since Sep 2021 (filed by my husband's employer). Fragomen said that even though I did a COS to H1b my H4/H4EAD applications may be approved.

if it does get approved, Is it possible for me to go outside the country and come in the US on H4EAD?

or it is possible that those applications will be denied and I will have to apply for another COS application for H4/H4EAD if I wanted to go that route.

My trouble is, current employer is not willing to start PERM process until 1 year of employment as per company policy. That is why I am trying to join another company that promised to start PERM process on day 1.

[YTeleven]

Thanks Gammaray. Appreciate your inputs.

I also have a pending H4/H4EAD application since Sep 2021 (filed by my husband's employer). Fragomen said that even though I did a COS to H1b my H4/H4EAD applications may be approved.

if it does get approved, Is it possible for me to go outside the country and come in the US on H4EAD?

or it is possible that those applications will be denied and I will have to apply for another COS application for H4/H4EAD if I wanted to go that route.

My trouble is, current employer is not willing to start PERM process until 1 year of employment as per company policy. That is why I am trying to join another company that promised to start PERM process on day 1.

Why can't you go back to your original employer who got the i-140 approval for you? Is he out of the business? If your spouse already had 140 petition why do you want one more?
Safer way is to transfer H1 in premium and once you get the confirmation of 3 years approval then start with new employer. Sometimes USCIS may give 3 years approval if you ask for 3 years.
Another option may be try concurrent H1B filing with new employer NOT the H1B transfer.

[akumar03]

Hello Friends/Gurus,

Wish you a very happy and prosperous Diwali!

We (I being the primary applicant) just filed our I-485 applications in September 2021 (RD: 09/07;ND: 09/09; BM completed: 10/15; I-485J ND: 10/26; PD: EB2I 06/22/2011; SC: NBC).

My wife (who works with EPA for federal and private power and energy sector clients) has received a letter from her company showing the loss of business opportunities and requesting USCIS to expedite her I-485 application. Is there any possibility USCIS can expedite such request? If yes, then what would be the best way to reach out to USCIS for such expedited request, email, phone, or live agent chat?

Appreciate if someone could guide me here. Thanks in advance!

[monsieur]

Is it possible for me to go outside the country and come in the US on H4EAD?

Just be clear if you go out and come back as dependent then your status will change from H1-B to H4-B. There is no such visa status as H4EAD.

You have to apply for EAD on H4 visa which is granted if primary is on H1-B and has approved I-140. Application goes thru its normal processing which as of now is 6-9months.

[gammaray]

Thanks Gammaray. Appreciate your inputs.

I also have a pending H4/H4EAD application since Sep 2021 (filed by my husband's employer). Fragomen said that even though I did a COS to H1b my H4/H4EAD applications may be approved.

if it does get approved, Is it possible for me to go outside the country and come in the US on H4EAD?

or it is possible that those applications will be denied and I will have to apply for another COS application for H4/H4EAD if I wanted to go that route.

My trouble is, current employer is not willing to start PERM process until 1 year of employment as per company policy. That is why I am trying to join another company that promised to start PERM process on day 1.

Not sure how the H4 rules will apply. I would think it would the "last action" rule that would be applicable. If your H4 extension is approved after your COS is approved then maybe the H4 would be valid. Not sure. The lawyer should be able to answer this easily.

Sounds like your spouse's I-485 hasn't been applied for since that would have been the easiest route -- with you as the dependent.

If you have a 3-year h1b visa then it shouldn't be a problem is the current employer starts the process after a year (besides the fact you will have to wait another year). I think what you need to confirm with the lawyers is when the I-485 finally is applied for 2-3 years down the line, that you will be eligible to do so since the PD would have been current for so long. If that is the case then staying with the current employer is the least risky option.

To answer your original question about h1b lottery -- no you will not be eligible for the h1b lottery. To get fresh 6 years of h1b and go through the lottery you would have to be physically outside the country for a year.

[idliman]

my question is how was my current employer able to receive 3 years on h1b if my dates were current? and if they can then why can't the new employer get the same? any thoughts on this...

also it looks like the attorney is saying from here on out I can only get 1 year H1b approval - just ONCE. Not sure why that is? I guess monsieur here said I could unlimited 1 year extensions until I get GC? I must have misinterpreted something.

First Q Regrding 3 year extension

Extension of H1B beyond 6 years can be done only with American Competitiveness in the 21st Century Act (AC21). You may extend your H1B status annually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the six-year limit (PERM submitted 1+ years before). Or, if your I-140 has already been approved but your priority date is not current, i.e. immigrant visa number is not available (meaning Priority Date in Visa Bulletin is not current), one may apply for three-year extensions of your H-1B status.

In your case when you applied for H1-B extension (the exact date and month), you need to check if your PD (25OCT2011 ? EB3I) was current when the H1B application reached USCIS (received date). Your PD was current from May 2021 VB onwards. If your H1B application was sent before this date to USCIS, then a 3 year H1B extension is allowed. If it was sent after May 2021, USCIS should not have provided you a 3 year H1B extension per law (only a 1 year extension is allowed). I would consider it as USCIS error in your favor.

Now once you move to a new employer, they will do a H1B transfer. H1B is for a specific job at a specific location for a specific employer. So the attorneys are saying that you will likely get only a 1 year H1B when your H1B is transferred to the new employer. As I had mentioned before PERM itself will take 1+ years. Then it is followed by I-140 / I-485. Also H1B extension approvals take a lot of time. H4 EAD process is also very slow. You are at the mercy of the slow processing speed of USCIS.

It may be in your best interest to stay with the 3 year H1B employer and push for a PERM and I-140 ASAP. I would allow 1.5 to 2 years for the PERM + I-140. If you think they will drag their feet and will not get it done, then you have to take a risk and move to the new employer. Do everything fast. The risk is that you may reach a period where you don?t have work authorization in between renewals. You will be unable to work / unemployed.

Second Q Regarding Extension
My opinion is that you are eligible for unlimited extensions. However, you may have to wait 1+ years for a 1 year H1B extension. Don't know if there are any technicalities involved for your specific situation. Your PD may face retrogression but more or less it will be current. If you apply for H1B extension during retrogression, you will get a 3 year H1B extension.

I am not able to think of other options for you. May be some other forum members may provide creative solutions for you. Guys/Girls, if you think of any options please help out another forum member. We cannot leave a super girl trapped in Earth / USA.

[qesehmk]

Hello Friends/Gurus,

Wish you a very happy and prosperous Diwali!

We (I being the primary applicant) just filed our I-485 applications in September 2021 (RD: 09/07;ND: 09/09; BM completed: 10/15; I-485J ND: 10/26; PD: EB2I 06/22/2011; SC: NBC).

My wife (who works with EPA for federal and private power and energy sector clients) has received a letter from her company showing the loss of business opportunities and requesting USCIS to expedite her I-485 application. Is there any possibility USCIS can expedite such request? If yes, then what would be the best way to reach out to USCIS for such expedited request, email, phone, or live agent chat?

Appreciate if someone could guide me here. Thanks in advance!

Welcome to forum - there is no such provision in the law. The visa allocation is done strictly by country category and priority date. She can try to get to a more favorable category. But that's about it.

p.s. - The case processing can be expedited though (as long as her PD is current). I know cases from other situations (e.g. PERM processing) where PERM was approved in a day because somebody in government said he wants that case processed now. Visa allocation however can not be expedited.

[gammaray]

[B]

Second Q Regarding Extension
My opinion is that you are eligible for unlimited extensions. However, you may have to wait 1+ years for a 1 year H1B extension. Don't know if there are any technicalities involved for your specific situation. Your PD may face retrogression but more or less it will be current. If you apply for H1B extension during retrogression, you will get a 3 year H1B extension.

I am not able to think of other options for you. May be some other forum members may provide creative solutions for you. Guys/Girls, if you think of any options please help out another forum member. We cannot leave a super girl trapped in Earth / USA.

Just to clarify since there are conflicting opinions offered here about the I-year extensions. I agree with the professional opinion of OP's lawyer that the 1-year extensions are not unlimited in this particular case i.e when the I-485 is not applied within 1-year of the PD being current. (or at least there is significant risk involved with USCIS denying further h1b extensions). Quick google search also has similar interpretations from other lawyer sites:

https://www.rnlawgroup.com/my-priori...1b-extensions/

https://bizlegalservices.com/2021/03...s-h-1b-status/

[monsieur]

Second Q Regarding Extension
I am not able to think of other options for you. May be some other forum members may provide creative solutions for you. Guys/Girls, if you think of any options please help out another forum member. We cannot leave a super girl trapped in Earth / USA.

Other option I can think of working to Company-B using H4-EAD and start GC process. Primary H1 extension will be requested in timely manner and so is Soopergal H4-EAD. Nearing expiration she can try expediating her EAD application showing job loss/financial hardship and such. I am working with assumption here that Primary PD is after Soopergal thats the reason she is trying to get her GC process started. Primary will get 3 yr extension when time comes and so is H4-EAD will be 3 yrs as well.

I am not aware of any rule where company can't sponsor GC for employee working on H4-EAD. GC is for future job and if perm is approved, she can swtich to H1 if she would like to.

[akumar03]

Thanks Q! I guess we just need to wait for our turn then.

[inspired_p]

Just to clarify since there are conflicting opinions offered here about the I-year extensions. I agree with the professional opinion of OP's lawyer that the 1-year extensions are not unlimited in this particular case i.e when the I-485 is not applied within 1-year of the PD being current. (or at least there is significant risk involved with USCIS denying further h1b extensions). Quick google search also has similar interpretations from other lawyer sites:

https://www.rnlawgroup.com/my-priori...1b-extensions/

https://bizlegalservices.com/2021/03...s-h-1b-status/

My spouse whose priority date was may 2009 never had problems getting 3 year H1B after the. Date became current from.two.different employers

So this is perplexing to me

[soopergal]

Why can't you go back to your original employer who got the i-140 approval for you? Is he out of the business? If your spouse already had 140 petition why do you want one more?
Safer way is to transfer H1 in premium and once you get the confirmation of 3 years approval then start with new employer. Sometimes USCIS may give 3 years approval if you ask for 3 years.
Another option may be try concurrent H1B filing with new employer NOT the H1B transfer.

Hi YTeleven, I cannot go back to original employer who got i-140 approval because they are out of business.

Spouse has approved i-140 but their PD is Nov 2016.

Yes I agree that I will start with new employer once I get 3 years approval. but I did not understand concurrent H1b filing? I am already working at current employer who has 3 years h1b approval. This new employer will do H1b Change of employer - their tentative star date is in Dec 2021.

thanks for your inputs, I appreciate it.

[soopergal]

My spouse whose priority date was may 2009 never had problems getting 3 year H1B after the. Date became current from.two.different employers

So this is perplexing to me

Please send similar good vibes for my H1b petition too! <prayer hands>

[soopergal]

Other option I can think of working to Company-B using H4-EAD and start GC process. Primary H1 extension will be requested in timely manner and so is Soopergal H4-EAD. Nearing expiration she can try expediating her EAD application showing job loss/financial hardship and such. I am working with assumption here that Primary PD is after Soopergal thats the reason she is trying to get her GC process started. Primary will get 3 yr extension when time comes and so is H4-EAD will be 3 yrs as well.

I am not aware of any rule where company can't sponsor GC for employee working on H4-EAD. GC is for future job and if perm is approved, she can swtich to H1 if she would like to.

Yes and yes. Spouse PD is Nov 2016 which is why we are trying to have an employer file new PERM process for me since my PD is current. Yes H4EAD has already been filed in September. Current employers attorney (Fragomen) thinks H4EAD application should still be approved even though we did COS to H1b. The plan was to switch to H4EAD if H1b was going to be approved only for a year. Thankfully it was approved until 2024. Now if only they did my PERM asap then I wouldn't have to go thru any of the trouble.

thanks for your reply monsieur!

[soopergal]

First Q Regrding 3 year extension

Extension of H1B beyond 6 years can be done only with American Competitiveness in the 21st Century Act (AC21). You may extend your H1B status annually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the six-year limit (PERM submitted 1+ years before). Or, if your I-140 has already been approved but your priority date is not current, i.e. immigrant visa number is not available (meaning Priority Date in Visa Bulletin is not current), one may apply for three-year extensions of your H-1B status.

In your case when you applied for H1-B extension (the exact date and month), you need to check if your PD (25OCT2011 ? EB3I) was current when the H1B application reached USCIS (received date). Your PD was current from May 2021 VB onwards. If your H1B application was sent before this date to USCIS, then a 3 year H1B extension is allowed. If it was sent after May 2021, USCIS should not have provided you a 3 year H1B extension per law (only a 1 year extension is allowed). I would consider it as USCIS error in your favor.

Now once you move to a new employer, they will do a H1B transfer. H1B is for a specific job at a specific location for a specific employer. So the attorneys are saying that you will likely get only a 1 year H1B when your H1B is transferred to the new employer. As I had mentioned before PERM itself will take 1+ years. Then it is followed by I-140 / I-485. Also H1B extension approvals take a lot of time. H4 EAD process is also very slow. You are at the mercy of the slow processing speed of USCIS.

It may be in your best interest to stay with the 3 year H1B employer and push for a PERM and I-140 ASAP. I would allow 1.5 to 2 years for the PERM + I-140. If you think they will drag their feet and will not get it done, then you have to take a risk and move to the new employer. Do everything fast. The risk is that you may reach a period where you don?t have work authorization in between renewals. You will be unable to work / unemployed.

Second Q Regarding Extension
My opinion is that you are eligible for unlimited extensions. However, you may have to wait 1+ years for a 1 year H1B extension. Don't know if there are any technicalities involved for your specific situation. Your PD may face retrogression but more or less it will be current. If you apply for H1B extension during retrogression, you will get a 3 year H1B extension.

I am not able to think of other options for you. May be some other forum members may provide creative solutions for you. Guys/Girls, if you think of any options please help out another forum member. We cannot leave a super girl trapped in Earth / USA.

appreciate all your help idliman! Apologies for not being able to respond over the weekend. The plan now is to make the switch once I get 3 years H1b approval, LCA will be filed this week, H1b will be filed in Premium so we will know soon enough.

Please send good vibes thanks so much

[soopergal]

Just to clarify since there are conflicting opinions offered here about the I-year extensions. I agree with the professional opinion of OP's lawyer that the 1-year extensions are not unlimited in this particular case i.e when the I-485 is not applied within 1-year of the PD being current. (or at least there is significant risk involved with USCIS denying further h1b extensions). Quick google search also has similar interpretations from other lawyer sites:

https://www.rnlawgroup.com/my-priori...1b-extensions/

https://bizlegalservices.com/2021/03...s-h-1b-status/

Now I hope the USCIS gods are in my favor ... I will post back the results of the H1b approval. thanks so much for your help!!

[jimmys]

Okay. Logged in after a year. I also looked at the latest visa bulletin and wondered why it's still in 2011/12 for EB-2/EB-3. Not following immigration things closely for the last year. Didn't EB2/3 India get expected SO in FY21? Or it's just USCIS inefficiency as usual? How many visas would have been wasted in FY 21?

[jimmys]

My spouse whose priority date was may 2009 never had problems getting 3 year H1B after the. Date became current from.two.different employers

So this is perplexing to me

Was your spouse primary applicant? This was well known issue for a long time. I am surprised your spouse got 3 year extensions from two different employers.