My I140 has been approved since 2008 under EB3. My priority date (february 2008) is current and I I have recently filed i485 on June 2nd, 2013 on my own. I just learned that my company is laying off 4 employees including me by end of this month. What are my options ?
Ms. Feldman is quite correct. This portability business is a strage legal creature. When your PERM is pending you cannot recapture priority date if you change employer and new PERM is filed. SAme applies to an I-140 when it is pending. Once approved, the pendulum moves in your favor. Now, you can refile the PERM and then the I-140 and reuse the priority date from the old approved one. Once I-485 has been pending for six months or longer you can change your employment to the same or similar position with another employer and do not need a new I-140 or PERM. Go figure.
You can get another job with another H-1B or wait for the EAD. Then you will need to have the new company start a labor certiifcation and I-140 BUT GOOD NEWS you can recapture the Priority Date from the already approved I-140 and interfile the new I-140 in the pending I-485.
Lynne R. Feldman, Attorney at Law
Concentrating in Immigration Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108 | (619) 299-9600
Fax: (619) 923-3277
Former Adjunct Professor -- Immigration law
University of Illinois College of Law
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