Question:
I am typing this mail on behalf of my friend.
One of my friend wants to change company ( currently sponsored in H1-B
and may apply for new H1-B from a different company ). His current
employer started his Green card labor processing sometime in 1997. If he
gets a new H1 and joins the new company, looks like he has to start his
whole green card application fresh.
The question is, will the old application's ( previous employer's )
priority date hold good with the new process OR a new priority date will
be set ??
Answer:
Please be advised that your friend need an Attorney.
His case is very complicated, if he need help ask him to contact;
Ms. Lombino Annamaria
(212) 564 8500
tell him that I refered him to her.
It's amazing how often this question comes up.
Your friend can retain his "old" priority date under the following
circumstances: Form I-140, Petition for Alien Worker, including the
approved labor cert, of course, is filed by his current employer, and
approved, and the petition is not withdrawn by the employer or revoked
by INS. Then his next employer files Form I-140, and it is approved.
When a visa is available for the "old" priority date, he may file Form
I-485, and ask to use the priority date from the "old" petition, even
though a visa is not available for the priority date of the new
employer's I-140.
And please note that if the new employer's I-140 requires labor
certification, then the new employer must obtain its own LC before
filing I-140. Any LC obtained by the first employer cannot be used for
immigration through the next employer (other than the priority date
under certain circumstances).
As a practical matter, your friend may not be able to get his old
employer to file Form I-140, if he is not working for them at the time
the labor certification is approved.
See 8 CFR section 204.5(e) for the regulations on priority date
retention provisions, available at
http://www.ins.usdoj.gov/law/inserts.html.
