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Previous employer revoking I-140

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Posted by ramke (1) 12 Feb 2018#1
Hello, I have an approved I-140 with my previous employer with priority date 2014. I moved to another employer and now planning on applying H4 EAD for my spouse. I came to know that my previous employer withdrawn (in progress) my I-140. Can I still file H4-EAD for my spouse?
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Posted by miracle11 (299) 13 Feb 2018#2
It is absolutely shocking that you "came to know" about your revocation of I-140 is under process. I mean who told you? Companies keep this information very discreet.

Answer to your question is: Yes, you can. First file COS and the file EAD. You can do it together but the EAD will only come through after your status gets changed to H4.
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Posted by pegasys (76) 13 Feb 2018#3
to miracle11:

You need not be shocked so much, if you switch on the alerts on your case in USCIS website, even after the case has been approved for long, you can still receive updates if there is any activity.
The USCIS status page has list of actions being taken, so if an employer is sending a letter to USCIS after he left , it just leads to only one conclusion.

To Miracle1 - If you already have the H4 in hand, apply it quickly, USCIS takes some time to take any action on the approved I140.
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Posted by gc2305 (183) 13 Feb 2018#4
to pegasys:

Does that mean revocation of I-140 dosent have any impact on the current H4 EAD which was derived from the I-140? And the issue arises only when its time to renew the H4 EAD eh?
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Posted by newuser8 (1) 13 Feb 2018#5
I thought I-140 cant be withdrawn by employer if it is approved for more than 180 days. Can someone confirm?
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Posted by gc2305 (183) 13 Feb 2018#6
to newuser8:

i-140 Can be withdrawn by the employer.
You CAN retain the PD! Hope that helps
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Posted by pegasys (76) 13 Feb 2018#7
to gc2305:

Yes, if you already have H4EAD, you are good.
Issue is only during extension.
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Posted by newark123 (53) 13 Feb 2018#8
to pegasys:

Its always baffling how uninformed or clueless few people on trackitt are generally.If the I140 is withdrawn by employer and that I140 is approved more than 180 days(rule came into effect in jan 2017),that can be used for H1B extensions in future.My previous employer(desi) did exactly that with in 3 months of my moving to another company.I checked this with couple of lawyers when they he withdrawn and they both confirmed that I can extend the H1B with that withdrawn I140.

Regarding H4 EAD,both lawyers said that you would need I140 to be active as the interpretation of rules in granting H4 EAD are taken differently by different officers adjudicating the case.They both said they would have to still come across cases to give me a solid answer on whether H4 EAD can be also be extended based on withdrawn I140.

Not a legal advise.Better pay $50 and get 30 mins of time from lawyer and have peace of mind instead of wasting time and confusing yourself with half knowledge answers on trackitt.
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Posted by newark123 (53) 13 Feb 2018#9
to gc2305:

Withdrawing of I140 doesn't have any impact on already approved H4EAD.You can use it until end of its validity period.You can do this if I140 is withdrawn by employer and not "revoked" by USCIS for fraud or misrepresentation.Exact words from lawyers I have contacted in June 2017 after my wife got 3 years H4 EAD and I changed the employer and then immediately the old employer withdrew my I140.My wife still uses the H4 EAD,even fragomen the current employers lawyer said the same that she can continue using it until its expiration.
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Posted by newark123 (53) 13 Feb 2018#10
to newark123:

Yes you may not extend H4 EAD with withdrawn I140( 2 lawyers gave 2 answers) but by the time of renewal,you would need to get a new I140 from the new employer to be eligible for further extension of H4 EAD.With H4 EAD revocation already in federal register,the extension of H4 EAD in future may not arise as the H4 EAD rule will probably be revoked barring any miracle happening which will stop the revocation.
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Posted by Zeal (91) 13 Feb 2018#11
to newark123:

Given the above scenario do we need to apply for H4 EAD now or wait till the final rule?
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Posted by karthikd1983 (28) 13 Feb 2018#12
to newark123:

Hi,

I would like to get another opinion based on similar situation. I dont have the I140 approval copy, instead have FIOA copy. Can we use that to extension with new employer.(Including H1B and H4 EAD).

Your answer really appreciated.
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Posted by Zeal (91) 13 Feb 2018#13
to karthikd1983:

https://www.uscis.gov/working-united-states/temp...

4. Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition?

In order to qualify for employment authorization as an H-4 nonimmigrant, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. If USCIS revokes the Form I-140 petition, your H-1B spouse is no longer the beneficiary of an approved Form I-140. Therefore, you would not qualify for employment authorization based on that eligibility criterion. You may still qualify for employment authorization if your H-1B spouse has received an extension of stay under sections 106(a) or (b) of AC21.

5. My H-1B spouse’s approved Form I-140 was filed by a previous employer. Am I eligible for employment authorization?

For you to qualify for employment authorization based on your H-4 status, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. USCIS does not require that the approved Form I-140 be filed by your spouse’s current employer or by the same employer who filed your H-1B spouse’s Form I-129, Petition for a Nonimmigrant Worker.

6. What happens to my employment authorization if USCIS revokes my H-1B spouse’s Form I-140?

We have the discretion to revoke your employment authorization if your H-1B spouse no longer has an approved Form I-140 or is no longer eligible for H-1B status under sections 106(a) and (b) of AC21. Both you and your H-1B spouse must be maintaining your nonimmigrant status for you to be eligible for employment authorization under 8 CFR 274a.12(c)(26).
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Posted by ganoush (32) 13 Feb 2018#14
to newark123:

I am in the same boat. However my employer's attorney said that I can apply for H4EAD extension with withdrawn i140. I am looking to apply next month.
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Posted by newark123 (53) 13 Feb 2018#15
to Zeal:

You would need to apply now .After the ruling there will be no h4 ead (assuming the rule gets revoked)
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Posted by newark123 (53) 13 Feb 2018#16
to karthikd1983:

I think you would just need alien number or receipt number.i however have a copy from the old employer.put in an Foia request on the recent h1b filed using i140 .that way you get all h1b application along with the i140 copy used to requests h1b extension .I got my i140 copy like that.If you do a FOIA requests on i140,you would get the application they filed and not the i140 approval copy as it is employer property.

However I think just receipt number or Alien number allocated to you should be sufficient for extension of h1b.Consult lawyer to confirm this.
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