J. J. Farrell

H1-B holder starts the Green Card process at
a company and gets an approved I-140. Before
he applies for the I-485, the company closes
down. He transfers his H1-B to another company.

I understand that he now has to start the GC
process from the beginning again. Does he get
any benefit from having an I-140 previously
approved?

I've been told that he is entitled to extend
his H1-B beyond the 6-year limit while waiting
for the GC because of this previous I-140. Is
this correct? If so, does this derive from
AC21 or somewhere else?

Thanks for your expert opinions.

Ingo Pakleppa

On Wed, 05 Mar 2003 12:09:05 +0000, J. J. Farrell wrote:

    > H1-B holder starts the Green Card process at a company and gets an
    > approved I-140. Before he applies for the I-485, the company closes
    > down. He transfers his H1-B to another company.
    >
    > I understand that he now has to start the GC process from the beginning
    > again. Does he get any benefit from having an I-140 previously approved?
    >
    > I've been told that he is entitled to extend his H1-B beyond the 6-year
    > limit while waiting for the GC because of this previous I-140. Is this
    > correct? If so, does this derive from AC21 or somewhere else?

It would come from AC21.

Also, if the company filed an I-140 on his behalf and it was approved,
then he can use the original priority date. Note that this is one
situation where it's OK to file the I-140 even though you have no plans to
work for that company any more.

J. J. Farrell

"Ingo Pakleppa" wrote in message
news:m%[email protected]...
    > On Wed, 05 Mar 2003 12:09:05 +0000, J. J. Farrell wrote:
    > > H1-B holder starts the Green Card process at a company and gets an
    > > approved I-140. Before he applies for the I-485, the company closes
    > > down. He transfers his H1-B to another company.
    > >
    > > I understand that he now has to start the GC process from the beginning
    > > again. Does he get any benefit from having an I-140 previously approved?
    > >
    > > I've been told that he is entitled to extend his H1-B beyond the 6-year
    > > limit while waiting for the GC because of this previous I-140. Is this
    > > correct? If so, does this derive from AC21 or somewhere else?
    > It would come from AC21.
    > Also, if the company filed an I-140 on his behalf and it was approved,
    > then he can use the original priority date. Note that this is one
    > situation where it's OK to file the I-140 even though you have no plans to
    > work for that company any more.

Thanks, Ingo. I'm still puzzled about this, though. It's not clear to
me why an I-140 for a previous company would be relevant later
anyway. Does the applicant need to do anything else to qualify
for the year-by-year extension, such as having an LC application
pending at the new company?

Could you spell this out a bit more for me, please, or point me to
somewhere that it's explained in more depth. I've had a look at the
INS 'Guidance on AC21 for H1-B' memo, but I can't see from
that how this benefit would come in this case.

Ingo Pakleppa

On Sun, 09 Mar 2003 12:10:04 +0000, J. J. Farrell wrote:

    >
    > "Ingo Pakleppa" wrote in message
    > news:m%[email protected]...
    >> On Wed, 05 Mar 2003 12:09:05 +0000, J. J. Farrell wrote:
    >> > H1-B holder starts the Green Card process at a company and gets an
    >> > approved I-140. Before he applies for the I-485, the company closes
    >> > down. He transfers his H1-B to another company.
    >> >
    >> > I understand that he now has to start the GC process from the beginning
    >> > again. Does he get any benefit from having an I-140 previously approved?
    >> >
    >> > I've been told that he is entitled to extend his H1-B beyond the 6-year
    >> > limit while waiting for the GC because of this previous I-140. Is this
    >> > correct? If so, does this derive from AC21 or somewhere else?
    >> It would come from AC21.
    >> Also, if the company filed an I-140 on his behalf and it was approved,
    >> then he can use the original priority date. Note that this is one
    >> situation where it's OK to file the I-140 even though you have no plans to
    >> work for that company any more.
    >
    > Thanks, Ingo. I'm still puzzled about this, though. It's not clear to
    > me why an I-140 for a previous company would be relevant later
    > anyway. Does the applicant need to do anything else to qualify
    > for the year-by-year extension, such as having an LC application
    > pending at the new company?

It has been established for many years (and confirmed by INS memos) that
once an employment-based priority date has been established in a category
and a petition has been approved, the priority date is yours to keep and
good for any future employment-based application (for 245(i) purposes, you
don't even need the petition).

This rule actually predates AC21 by quite a bit.

Whether this means that he can take advantage of AC21 is indeed a bit
murkier because INS hasn't issued regulations, but I see no reason why it
shouldn't be acceptable.

    > Could you spell this out a bit more for me, please, or point me to
    > somewhere that it's explained in more depth. I've had a look at the
    > INS 'Guidance on AC21 for H1-B' memo, but I can't see from
    > that how this benefit would come in this case.