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If I have approved I-140 from one employer and am not working for them anymore, can I use that priority date for new EB2 or EB3?

Terre Haute, IN |

I was working as a Pharmacist and my I-140 was approved for EB3 category with a priority date of 12/29/2007. I quit my job in 2011 July to move with my husband but the employer hasn't withdrawn my application (to my knowledge). I had used up almost 6 years of my work visa. I have been told that if I find employment and work visa, I'll be eligible for extension based on my approved I-140. Is that right? The extension would have to be filed right away? Also will I be able to use that priority date and apply for EB2 category? I'm from India.
Thank you so much

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Attorney answers 3


So you quit your H-1B with your employer almost 1 1/2 years ago? Your out of status. One can utilize a previous priority date of an approved I-140 or previous approved PERM and re-file a new PERM but use the "old" priority date with a new employer. What is problematic is that your H-1B is no longer valid even though your employer may have not notified USCIS and the DOL of the fact that you are no longer worker for them since July 2011 although they should have as well as making you an offer to pay your travel expenses back to India. Even if you now apply for another H-1B with a new company you cannot show any pay stubs from the old company that are recent to allow you to port or more to a new company with a new H-1B and not be subject to CAP H-1B. In general terms, yes an H-1B can be extended past the max 6 years to a 7th year H-1B using a law called AC21 and also to utilize your approved I-140 with an old priority date BUT you must still file a brand new PERM go through the trouble of getting this certified albeit using the old priority date, then filing a new I-140 and finally if approved and your priority date is current. file for an I-485. I'm afraid you cannot use these avenues since you are and have been out of status for more than 6 months and can't even use the INA 245)k) waiver when you ultimately would have filed for adjustment of status. Unless I'm missing something that's how I see your situation. Sorry.



thank you sir. So I can't get H-1 B anymore?


Yes, you can retain the old priority date for a new petition under EB-2 or EB-3.

Please click the link at the very bottom for additional information.

Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
Schedule a Legal Consultation - Telephonic or In-Person
600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
(213) 394-4554 x0
Web: (English) (Spanish)

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


Yes, you should be able to carry the priority dates. To learn whether you would be able to file an extension right away check with an attorney. Best Wishes!

Lalita Haran
13295 Illinois st ste 128
Carmel IN 46032
Ph: (317) 660-6174