Working in USA on H1B visa and have Green Card in process. Can I apply for express entry?

[cic86]

Yes, but the protection from I140 revocation starts after 6 months.

You can only lose your PD if your i140 is revoked due to fraud, misrepresentation, or material error regardless of the 6 month clause. You're referring to H1B extensions beyond the 6th year which is irrelevant if you're migrating to Canada anyway so it doesn't matter if you quit the very next day after your i140 is approved in TERMS OF PD!

 

[appar]

Get canadian PR. As Indian, you have to wait 4 to 5 years at least to get GC. By that time you become Canadian citizen and you can work in US without any difficulty...

4 or 5 years is EXTREMELY generous. If your priority date is today you can hope to get your green card in maybe 15 years for EB2. Current wait time is 9 years and its not going down.

 

[karthik506]

That's not entirely correct. A canadian citizen still needs a work visa for the US. An option is the TN1 which may be better than the H1b in some respects but not always.

@pallavichauhan88 Your I-140 is quite far away as it seems the recruitment and PERM stage is yet to start. Like with any immigration matter, any rule can change at any time. Likewise canadian PR rules may not be favorable for you at a later date. I would apply for it either way. Neither PR has an effect on the other.

Yes, Canadians need work visa to work in USA. However, it is much easier than HIB. If someone is having PhD or extremely talented in their field of expertise, they would get a work visa easily (my opinion).

 

[smcan2014]

4 or 5 years is EXTREMELY generous. If your priority date is today you can hope to get your green card in maybe 15 years for EB2. Current wait time is 9 years and its not going down.

4,5,15 years what are guys talking about? Is it about GC processing time? You all are blissfully unaware of the actual processing time. The current wait time for someone with 2012 P.D, which is me, is 65 years. Somebody with P.D of 2015 has to wait, I guess 100 years. 65 or 100 or 40 does not matter. Any way your career would be over.

 

[lampbreaker]

You can only lose your PD if your i140 is revoked due to fraud, misrepresentation, or material error regardless of the 6 month clause. You're referring to H1B extensions beyond the 6th year which is irrelevant if you're migrating to Canada anyway so it doesn't matter if you quit the very next day after your i140 is approved in TERMS OF PD!

With a 2018 or 2019 PD for EB2 India, retaining it is not going to be a concern since getting a GC on that PD is going to take pretty much forever. Having the I-140 valid in order to transfer/obtain H1B is the only concern. If the employer withdraws the I-140 within 6 months of approval, USCIS has the ability to revoke it. I have even heard of cases when they revoked it after 6 months.

 

[cic86]

With a 2018 or 2019 PD for EB2 India, retaining it is not going to be a concern since getting a GC on that PD is going to take pretty much forever. Having the I-140 valid in order to transfer/obtain H1B is the only concern. If the employer withdraws the I-140 within 6 months of approval, USCIS has the ability to revoke it. I have even heard of cases when they revoked it after 6 months.

An i-140 can be withdrawn after or before 6 months, it's totally upto the employer. Infact the sponsoring company is obligated to withdraw the i-140 petition as it's a reporting requirement to the USCIS. I think we need to clearly distinguish between withdrawing and revoking. Revocation only happens due to fraud, misrepresentation, or material error as I mentioned earlier(AC-21 rule) which in general doesn't apply to most people and only in that case is the PD lost forever.

When it comes to PD, yes it's going to take forever to get a GC but suppose there is a 1% chance four or five years down the line where there is a legislation passed to provide GCs to all those that have a PD + a US Masters degree(just giving an example) then it would be regretful if you can't take advantage of such a provision specially if your GC process was started. Chances are slim but why not keep options open?

As far as H1B goes, if you're migrating to Canada, your employer would've withdrawn your i140 petition so a new i140 petition would be required although you can port your old PD. So not sure how H1B extensions are applicable if you've resettled in Canada.

 

[appar]

Assuming they do pass some legislation in the future they will not hand out green cards to everyone with a PD. They will only give it to those who have an active employment based petition pending. PD is just a date. To get a green card you have to have an employer to sponsor you and a valid job offer. Check the 2013 and 2006 immigration reform bills and you will see you only get a green card if you are working in the US.

 

[cic86]

Assuming they do pass some legislation in the future they will not hand out green cards to everyone with a PD. They will only give it to those who have an active employment based petition pending. PD is just a date. To get a green card you have to have an employer to sponsor you and a valid job offer. Check the 2013 and 2006 immigration reform bills and you will see you only get a green card if you are working in the US.

If they pass such a legislation, then you'll need to have an active i140 to "reactivate" your PD which is doable if you can find employment in the US.

 

[appar]

Yes you will have to find employment in the US with the same employer who originally petitioned for you. Else you will have to start with the PERM and go through the whole process again. Then again if they are clearing out the backlog it won't take long for you to get a GC with a fresh application and your PD won't matter much.

 

[lampbreaker]

An i-140 can be withdrawn after or before 6 months, it's totally upto the employer. Infact the sponsoring company is obligated to withdraw the i-140 petition as it's a reporting requirement to the USCIS. I think we need to clearly distinguish between withdrawing and revoking. Revocation only happens due to fraud, misrepresentation, or material error as I mentioned earlier(AC-21 rule) which in general doesn't apply to most people and only in that case is the PD lost forever.

-- If you read my post clearly, it distinguishes between withdrawal and revocation. It was common practice of USCIS to revoke the I-140 after employer requested to withdraw it (without any fraud, misrepresentation or error). Obama era regulation gave protection from such revocation only if 6 months have passed after approval. Even then I recently read some cases whose I-140 got revoked after 6 months of approval. In that case if 6 months have passed then you at least have some ground for appeal. No such protection if 6 months have not passed. Hence, one should wait 6 months after approval to quit the petitioner.

When it comes to PD, yes it's going to take forever to get a GC but suppose there is a 1% chance four or five years down the line where there is a legislation passed to provide GCs to all those that have a PD + a US Masters degree(just giving an example) then it would be regretful if you can't take advantage of such a provision specially if your GC process was started. Chances are slim but why not keep options open?

-- Yes, quitting after 6 months and keeping the I-140 valid gives you such option (even though slim).

As far as H1B goes, if you're migrating to Canada, your employer would've withdrawn your i140 petition so a new i140 petition would be required although you can port your old PD. So not sure how H1B extensions are applicable if you've resettled in Canada.

-- If the I-140 remains valid, another employer can file an H1 transfer and the person can return to US immediately. Yes, another I-140 will be needed, but that will be needed anyway. Employers are more willing to quickly transfer H1B rather than filing a cap-subject petition. If you have not used 6 years of H1, then you don't need the I-140 for transferring. However, it will still be needed for PD porting.

Hope this is clear. When people on H1B get Canada PR, they want to keep their US options open.

 

[cic86]

Hope this is clear.

This quora post pretty much sums up i140. What happens before 6 months and after 6 months - https://www.quora.com/Do-I-have-to-wait-for-6-months-after-receiving-my-I-140

 

[lampbreaker]

This quora post pretty much sums up i140. What happens before 6 months and after 6 months - https://www.quora.com/Do-I-have-to-wait-for-6-months-after-receiving-my-I-140

From the quora article,
State (3)—which you get into by quitting before 180 days have passed—is somewhat undesirable to be in, since you can’t get H-1B extensions beyond the sixth year. If you are in the early part of your six years of H-1B time, then this may not be a problem, since you may port your H-1B to a new employer and have them file either PERM or an I-140 before the end of the fifth year. However, if you are already in or approaching the sixth year of your H-1B period, then you might not want to do this. Sure, you can start working for a new employer, but if that employer will not be able to file PERM or an I-140 before the end of the fifth year, then your H-1B time will expire at the end of the sixth year even if the I-140 is pending by that time, and, if you are not eligible for another status, you will have to leave the US until the new I-140 is approved. After I-140 approval, you will again become eligible for H-1B extensions.

Bottom line, wait for 6 months, then quit and move to Canada.

 

[cic86]

From the quora article,
State (3)—which you get into by quitting before 180 days have passed—is somewhat undesirable to be in, since you can’t get H-1B extensions beyond the sixth year. If you are in the early part of your six years of H-1B time, then this may not be a problem, since you may port your H-1B to a new employer and have them file either PERM or an I-140 before the end of the fifth year. However, if you are already in or approaching the sixth year of your H-1B period, then you might not want to do this. Sure, you can start working for a new employer, but if that employer will not be able to file PERM or an I-140 before the end of the fifth year, then your H-1B time will expire at the end of the sixth year even if the I-140 is pending by that time, and, if you are not eligible for another status, you will have to leave the US until the new I-140 is approved. After I-140 approval, you will again become eligible for H-1B extensions.

Bottom line, wait for 6 months, then quit and move to Canada.

Yes that only applies if you're still working in the US. Why would anyone need H1 extensions beyond the 6th year if you've got a Canadian PR?

 

[lampbreaker]

Yes that only applies if you're still working in the US. Why would anyone need H1 extensions beyond the 6th year if you've got a Canadian PR?

To be able to return to US, for most people on H1B, Canada is only a backup.

 

[bullmoose]

I think one of the major drawback of going to Canada on PR and coming back on TN1 after becoming Canadian citizen is, you cannot seek permanent residency. i.e. To apply for green card and use your existing PD (before you left for Canada), you need to get back in fresh H1B quota, start your GC process from scratch and claim your old PD during I-140 application.