Moving to Canada from USA with Approved I140

[madhavi001]

Hello there,

I am living in Canada as PR since March 2019 and have question on filing business visa to visit USA.

Before I moved to Canada, I had an approved i140& H1b valid till Oct 2020 but as I quit my job to come to Canada apparently my H1b is lost.

My question is, how can I visit US, as I have property in US and I need to visit to take care of it.
If I file a visitor/business visa would it affect my H1 or I140 in anyway?

Another question I have is regarding future prospects about moving back to US - I already spent 7 years on H1b (Approved I140 and PD is 2016) and then moved to Canada. Would I be eligible for cap - exempt H1b when I move back to USA? How many years potentially I have to make that decision?

Thanks in advance, regards!
Madhavi

 

[destornillador]

I moved to Canada as a PR early this year. I have an approved I140 from my previous employer, with a PD of April 2014, and I've been on H1-B status from Sep 2012 and my current stamp is valid till Sep 2021. I saw that HR1044 a bill to remove the country caps passed house. Hypothetically, if this bill becomes a law this year, this will probably create a wait time of at least 8 years for all countries.

1) Can I port by I140 to new employer using the AC21 rule or would they need to file for the labor certification again?
2) How long do I have before I have to file for I485 after the PD date is current, to not loose the place in the queue?
3) If I join my previous employer, would they be able to continue the process after I140?

 

[harirajmohan]

I moved to Canada as a PR early this year. I have an approved I140 from my previous employer, with a PD of April 2014, and I've been on H1-B status from Sep 2012 and my current stamp is valid till Sep 2021. I saw that HR1044 a bill to remove the country caps passed house. Hypothetically, if this bill becomes a law this year, this will probably create a wait time of at least 8 years for all countries.

1) Can I port by I140 to new employer using the AC21 rule or would they need to file for the labor certification again?
2) How long do I have before I have to file for I485 after the PD date is current, to not loose the place in the queue?
3) If I join my previous employer, would they be able to continue the process after I140?

1. No, you cannot port 140 as its based on the job for that specific position with that specific company. Yes you need to do labor and 140 with the new company.
2. You can port your priority date hence you get your 2014 priority date.
There is no time limit to file 485 after your PD is current but you wont be able to request for H1 extension after year it became current. I think that i got this statement right. Others can correct me if i am wrong.
3. Yes you can join them back but as long as the 140 is not withdrawn/revoked.

FYI - Even if that bill you mentioned passes today, 2014 priority date will take few years to reach hence you would have completed your residency and would have received canadian citizenship. So nothing is going to change overnight.

My opinion: Its difficult for that bill to get pass senate. will see. just dont plan on these bills until some bill becomes law. For any effect of any new bills, we will always have enough time to react as none of the bills can bring the priority date current for Indians. So i dont see any hurry in doing any change in current plans. I heard that similar bills came up in Obama period and went down without becoming law hence there is long way to see some light if there will be anything coming our way.

 

[destornillador]

1. No, you cannot port 140 as its based on the job for that specific position with that specific company. Yes you need to do labor and 140 with the new company.
2. You can port your priority date hence you get your 2014 priority date.
There is no time limit to file 485 after your PD is current but you wont be able to request for H1 extension after year it became current. I think that i got this statement right. Others can correct me if i am wrong.
3. Yes you can join them back but as long as the 140 is not withdrawn/revoked.

FYI - Even if that bill you mentioned passes today, 2014 priority date will take few years to reach hence you would have completed your residency and would have received canadian citizenship. So nothing is going to change overnight.

My opinion: Its difficult for that bill to get pass senate. will see. just dont plan on these bills until some bill becomes law. For any effect of any new bills, we will always have enough time to react as none of the bills can bring the priority date current for Indians. So i dont see any hurry in doing any change in current plans. I heard that similar bills came up in Obama period and went down without becoming law hence there is long way to see some light if there will be anything coming our way.

Thanks for that input. I was not aware of the H1b rule, if PD is current. That is tricky. Does that come into the picture only for the employer that filed the I140 or for any employer? It does not make sense if it's a different employer, as by that logic someone from say Pakistan, for whom the PD is always current, won't be able to file for an H1b at all.

 

[harirajmohan]

Thanks for that input. I was not aware of the H1b rule, if PD is current. That is tricky. Does that come into the picture only for the employer that filed the I140 or for any employer? It does not make sense if it's a different employer, as by that logic someone from say Pakistan, for whom the PD is always current, won't be able to file for an H1b at all.

Check more or check with lawyer to see what he/she says whether one can transfer H1 after a year to a new company.

One of these articles says that 140 expires in a year of PD becomes current. It makes sense because why would uscis will issue you unlimited H1 even after PD became current. AC21 is brought to have some flexibility to move to new employer and retain priority date while waiting for PD to become current, not for extending H1 for ever.
https://www.fragomen.com/insights/alerts/uscis-job-portability-rule-takes-effect
https://www.jdsupra.com/legalnews/immigration-law-update-uscis-publishes-54548/

 

[destornillador]

Check more or check with lawyer to see what he/she says whether one can transfer H1 after a year to a new company.

One of these articles says that 140 expires in a year of PD becomes current. It makes sense because why would uscis will issue you unlimited H1 even after PD became current. AC21 is brought to have some flexibility to move to new employer and retain priority date while waiting for PD to become current, not for extending H1 for ever.
https://www.fragomen.com/insights/alerts/uscis-job-portability-rule-takes-effect
https://www.jdsupra.com/legalnews/immigration-law-update-uscis-publishes-54548/

Yeah, I will when the time comes. I think the restriction must be on a cap exempt H1b after the PD has been current for more than a year. So if one goes through the lottery and is willing to loose the PD, and gets picked up in the lottery, they can theoretically apply for the H1b.

 

[harirajmohan]

Yeah, I will when the time comes. I think the restriction must be on a cap exempt H1b after the PD has been current for more than a year. So if one goes through the lottery and is willing to loose the PD, and gets picked up in the lottery, they can theoretically apply for the H1b.

Correct, its only for cap exempt. THere is no issue on getting into new quota or i think that one can transfer to new employer for 1 year while PD is current(same as extending through current employer as the eligibility should be same).

But i think that one should file 485 with current employer and then move after 6 months which will make things easier(as no more labor/140).

Is your concern while being outside US? I think that your PD wont become current anytime soon. So get your Canadian citizenship and then move to US and wait for GC.

 

[destornillador]

Correct, its only for cap exempt. THere is no issue on getting into new quota or i think that one can transfer to new employer for 1 year while PD is current(same as extending through current employer as the eligibility should be same).

But i think that one should file 485 with current employer and then move after 6 months which will make things easier(as no more labor/140).

Is your concern while being outside US? I think that your PD wont become current anytime soon. So get your Canadian citizenship and then move to US and wait for GC.

Yup, getting the Canadian citizenship is in hand. Getting the green card, even if the bill passes, is dependent on maintaining H1b status for at least 3 more years, and hoping the employer will be kind enough, and stay in business, to file the I485.

I'm rather just tempted to file in the EB2 NIW, after the citizenship and *if* the 2014 priority date is current in 2022.

 

[ncat99]

I had 3 years more in my H1B when I quit US and moved to Canada.

Can I in future use those 3 years and not subject to lottery if any US employer wants to hire me ?

 

[madhavi001]

Hello there,

I am living in Canada as PR since March 2019 and have question on filing business visa to visit USA.

Before I moved to Canada, I had an approved i140& H1b valid till Oct 2020 but as I quit my job to come to Canada apparently my H1b is lost.

My question is, how can I visit US, as I have property in US and I need to visit to take care of it.
If I file a visitor/business visa would it affect my H1 or I140 in anyway?

Another question I have is regarding future prospects about moving back to US - I already spent 7 years on H1b (Approved I140 and PD is 2016) and then moved to Canada. Would I be eligible for cap - exempt H1b when I move back to USA? How many years potentially I have to make that decision?

Thanks in advance, regards!
Madhavi

Hello Folks, Please let me know your response to my above questions.

 

[lampbreaker]

Hello Folks, Please let me know your response to my above questions.

My question is, how can I visit US, as I have property in US and I need to visit to take care of it.
If I file a visitor/business visa would it affect my H1 or I140 in anyway? - it makes no difference

Another question I have is regarding future prospects about moving back to US - I already spent 7 years on H1b (Approved I140 and PD is 2016) and then moved to Canada. Would I be eligible for cap - exempt H1b when I move back to USA? How many years potentially I have to make that decision? - as long as the I-140 is not revoked (unlikely), you will remain eligible for cap-exempt H1B. The limit used to be 6 years after you last held H1B status (lived in the US in in H1B), but recently I think they have rmeoved this limit. But at the very least you have 6 years.

 

[madhavi001]

My question is, how can I visit US, as I have property in US and I need to visit to take care of it.
If I file a visitor/business visa would it affect my H1 or I140 in anyway? - it makes no difference

Another question I have is regarding future prospects about moving back to US - I already spent 7 years on H1b (Approved I140 and PD is 2016) and then moved to Canada. Would I be eligible for cap - exempt H1b when I move back to USA? How many years potentially I have to make that decision? - as long as the I-140 is not revoked (unlikely), you will remain eligible for cap-exempt H1B. The limit used to be 6 years after you last held H1B status (lived in the US in in H1B), but recently I think they have rmeoved this limit. But at the very least you have 6 years.

Thank you so much . Appreciate it.

 

[Samoinp]

My question is, how can I visit US, as I have property in US and I need to visit to take care of it.
If I file a visitor/business visa would it affect my H1 or I140 in anyway? - it makes no difference

Another question I have is regarding future prospects about moving back to US - I already spent 7 years on H1b (Approved I140 and PD is 2016) and then moved to Canada. Would I be eligible for cap - exempt H1b when I move back to USA? How many years potentially I have to make that decision? - as long as the I-140 is not revoked (unlikely), you will remain eligible for cap-exempt H1B. The limit used to be 6 years after you last held H1B status (lived in the US in in H1B), but recently I think they have rmeoved this limit. But at the very least you have 6 years.

Based on feedback from lawyers, make sure to provide a strong tie to Canada when applying for visitor visa with an approved I-140. That was a petition for permanent status, visa officers might question intent for a visitor visa. A strong tie like Home, lease agreement, Job etc helps.

 

[madhavi001]

Based on feedback from lawyers, make sure to provide a strong tie to Canada when applying for visitor visa with an approved I-140. That was a petition for permanent status, visa officers might question intent for a visitor visa. A strong tie like Home, lease agreement, Job etc helps.

Thank you so much. I will make sure to include it in my documents.

 

[Joshua2018]

Hello Folks,

My i140 was approved exactly a year ago in August 2018. I've been with the same employer after that and now I am moving to Canada during the month of September 2019. My payroll with the US employer that approved my I140 has been active for over 365 days now and I've been receiving pay checks from them for the past one year. I am serving my notice period with the US employer right now and I will be joining a different employer in Canada.

Could you please let me know if there are any specific i140 or Perm related documents that I need to request from my US employer before I move out of the US company and the US? .The reason I am asking is that I'd definitely like to have the possibility to come back to the US available , after I receive my Canadian citizenship. So in order for me to apply for H1 B again with a different employer ,I'd like to know what kind of I140 related documents would I need to present to them when I plan on returning to the US after becoming a Canadian citizen.

I've a copy of the approved I140 document ( It's just one page ) with me and my subsequent H1B approval notice also has the A number printed on it.

Is there anything else I need to get from my US employer before my exit from the company?

Looking forward to your valuable responses.

Thanks & Regards
Joshua