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I-140 Withdrawals, H1B Extensions, H4-EAD and Retention of Priority Dates FAQs

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The I-140 withdrawals by Employers have raised many concerns in the H1B Visa Community. Let's take a look at the regulations and a few scenarios. Before January 17, 2017, I-140 approval withdrawn by the Employer is obsolete and you can not use it for an H1B Extension, I-140 porting, and applying for an H-4 EAD under the AC21 regulations. Unless unless the visa numbers were available and an I-485 was filed and employed for 180 days after such I-485 filing..

The new rule comes as a boon that came into existence on January 17, 2017, USCIS clarified the impact of I-140 petitions if withdrawn by the Employer or the Employer goes out of business. The I-140 approval that is withdrawn after January 17, 2017, but has approved for at least 180 days as of the date of withdrawal, USCIS will consider the case as approved unless revoked by the USCIS for fraud or misrepresentation or other grounds. The Employer can only withdraw and can not revoke the I-140 petition after January 17, 2017, it will only relieve the Employer from any liabilities. 

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Please see an illustration below which depicts USCIS decision on an I-140 withdrawn by an Employer after January 17, 2017

1382206373_I-140WithdrawalsH1BExtensionsH4-EADandRetentionofPriorityDatesFAQs.thumb.jpeg.0110ef0bfe8d3d57604d62531fc62c08.jpeg

FAQs

Employer withdraws my I-140 within 180 days of approval can I use it for H1B Extension or Priority date porting to a new I-140?

No. As discussed above, you can not use for the reasons above.

My I-140 is from another Employer, and it was approved more than 180 days ago. Can I use it for an H1B Extension with a new Employer to extend beyond 180 days?

Yes. You can use it with any Employer to file an H1B extension beyond six years.

My I-140 is from another Employer, and it was approved more than 180 days ago. Can I use it for filing an H4-EAD for my spouse?

Yes. You can use it to file an H4 EAD for your spouse.

Am I required to port the I-140 to a new Employer?

If the I-140 was withdrawn after 180 days, you should seek new GC sponsorship by filing PERM/I-140 to continue the GC process. The previous withdrawn I-140 can not be used to file an I-485 (Permanent Residence) should the visa numbers become available for your country of birth.

What is I-140 priority date porting, and how to do it?

When your first Employer filed a PERM, the date filed establishes a priority date for you to stay ahead in the Greencard line. The USCIS provides this date on your I-140 approval notice as "Priority Date." You can continue with the same priority date with subsequent I-140 petitions filed by other Employers, so you don't lose your number in the long line. Please ensure you notify your new Employer of your previous I-140 approval and the priority date before they file the new I-140.

I have an approved PERM, my I-140 not filed and I left the Company, can I port the date?

No. You can not port a priority date from a PERM Labor Certification.

I do not have a copy of the I-140 from my previous Employer, any way to receive it?

You can file an FOIA (Freedom of Information Act) request with the USCIS, and not guaranteed for I-140 petitions. You may request online by visiting https://first.uscis.gov/#/

If you still have questions, please add under Comments. Thank you. Please follow us at https://www.facebook.com/immisupport/

#i-140withdrawal #h1bextension6years 



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