Form i140 on F1 status

[mustang630]

Hi,

I was hired by my employer last year (2016) while I began my F1 OPT, and they started the PERM process as well as applied for h1b this year (2017). However I did not get picked up in the H1b lottery, so I am still in F1 OPT status, more specifically on my OPT extension for next 24 months (till 2019). I was just notified that the PERM labor certification was approved for me, but since I am on F1 status, if I move ahead with the filing of Form 140, I cannot travel internationally unless I get H1b picked up (which could be October 2018, or even October 2019). But i have the option of letting this PERM certificate expire and restart the whole process.

From what I understood, If restart the process, I will lose my priority date, and if I don't I won't be able to leave the country until I get an H1b approved. Are these the only two options that I have? Also, Is my understanding correct? Could use some advice.

[scientist2016]

I do not see why you cannot travel out of the country if you start your I140 process. F1 visa only allows for non-immigrant intent ONLY (H1 is a dual intent visa by the way). Hence, if you have I485 in progress (which clearly demonstrates immigrant intent), you cannot use F1 visa to enter the US. But I140 does not necessarily demonstrate immigrant intent. I140 is filed by an employer for either an existing or a prospective employee. Just because an employer filed a I140, does not mean the employee is obligated to stick with an immigrant intent i.e., has no recourse to F1 visa in the future. So, I do not see why you cannot travel internationally and reenter using your F1 visa.

If you do not have a valid F1, and would need to get one stamped, then you might face questions at the consulate regarding your non-immigrant intent, given there is I140 processing going on for you. So getting F1 visa might be a bit more difficult, but definitely not impossible.

[Leonid99]

Your employer spent significant resources on your PERM. It is expensive because of the attorney fees and it's time-consuming for your employer's HR department (they need to define the position requirements, advertise your position in media, potentially interview candidates, etc). I'm not sure that if you just let it expire they will go through all the trouble again. They certainly don't expect you to just let it expire.
More to the point, while your AOS is pending, you can file for Advanced Parole. So, if your PD is current (it depends on your country of birth and I-140 filing category), you can file for AOS concurrently with I-140 and file for AP at the same petition. That means that the window when you can't travel internationally is just a couple of months.

[Leonid99]

But I140 does not necessarily demonstrate immigrant intent. I140 is filed by an employer for either an existing or a prospective employee. Just because an employer filed a I140, does not mean the employee is obligated to stick with an immigrant intent i.e., has no recourse to F1 visa in the future. So, I do not see why you cannot travel internationally and reenter using your F1 visa.

I tried to finding an answer to this question (whether I-140 constitutes immigration intent or not) and the opinions differ, even between proper immigration lawyers.
I'm not saying that it definitely does (constitute immigration intent), all I'm saying that it's not clear-cut and if you choose to travel internationally, you depend on a whim of a CBP officer at the PoE when you return. Traveling with pending I-140 doesn't seem like a smart thing to do.

[scientist2016]

Your employer spent significant resources on your PERM. It is expensive because of the attorney fees and it's time-consuming for your employer's HR department (they need to define the position requirements, advertise your position in media, potentially interview candidates, etc). I'm not sure that if you just let it expire they will go through all the trouble again. They certainly don't expect you to just let it expire.
More to the point, while your AOS is pending, you can file for Advanced Parole. So, if your PD is current (it depends on your country of birth and I-140 filing category), you can file for AOS concurrently with I-140 and file for AP at the same petition. That means that the window when you can't travel internationally is just a couple of months.

I agree regarding AOS and AP. But given the tone of the OP, I suspected that they might be from one of the backlogged countries (India and China), and hence filing AOS concurrently or in the near future might not be an option.

For that matter travelling internationally while on OPT (or for that matter on any visa) in itself might leave you at the whims and fancies of the CBP officer, but that does not mean you should not. If the OP already has a valid F1 visa, international travel would be less complicated than if they have to go and get a visa which would put more of a burden to demonstrate non-immigrant intent to the VO.

[inadmissible]

There are some factual errors in that article, unusual for Zhang

Like the 30/60/90 days from entry AOS myth, and the "immigrant petition imputes immigrant intent" myth. The former has no basis in the statute cited, INA214. The latter is contrary to the Foreign Affairs Manual

If an immigrant visa will be available to you before your OPT is over, the most conservative approach would be to avoid departing the United States until your Advance Parole is approved. If an immigrant visa won't be available by then, you'll have to leave anyway

[mustang630]

I guess what I understood about this situation initially, is what the responses seem to convey. Answering a few questions/assumptions in the replies:

Yes, I'm from India, so the wait time for AOS and Advanced Parole is too long, and not an option for me. Since I'm on OPT till 2019, I have 2 more H1b lottery chances left (2018 and 2019). So a travel restriction might last till Oct 2018 (or Oct 2019 if H1b is not picked next year). As for letting PERM expire, my employer is ready to restart the process (but I would loose Priority Date).

Judging the replies, I'm assuming it's not safe for me to travel with F-1 OPT and I 140 pending. And if i want to, I have to forgo PD.

[mustang630]

I think what I understand of this situation, is that I should not travel with F1 OPT and i 140 pending. or lose my priority date if i let PERM certifcation expire.

To answer a few questions/assumptions: I am from India, so AOS or Advanced Parole is not an option. Also, my F1 OPT is till 2019, and I have 2 more H1b FYs left, 2018 and 2019. An international travel restriction would mean not travelling till October 2018 or 2019. And my employer is ready to restart the process, but I will lose my Priority Date.

[inadmissible]

India? You can't stay in the United States beyond your OPT expiry, unless you win the H visa lottery next year (or possibly the following year if premium processing is reinstated)

[scientist2016]

I think what I understand of this situation, is that I should not travel with F1 OPT and i 140 pending. or lose my priority date if i let PERM certifcation expire.

To answer a few questions/assumptions: I am from India, so AOS or Advanced Parole is not an option. Also, my F1 OPT is till 2019, and I have 2 more H1b FYs left, 2018 and 2019. An international travel restriction would mean not travelling till October 2018 or 2019. And my employer is ready to restart the process, but I will lose my Priority Date.

Nope, you can travel. Please see the replies above. Merely filing I140 DOES NOT translate to immigration intent.

[kyo00712]

I do not see why you cannot travel out of the country if you start your I140 process. F1 visa only allows for non-immigrant intent ONLY (H1 is a dual intent visa by the way). Hence, if you have I485 in progress (which clearly demonstrates immigrant intent), you cannot use F1 visa to enter the US. But I140 does not necessarily demonstrate immigrant intent. I140 is filed by an employer for either an existing or a prospective employee. Just because an employer filed a I140, does not mean the employee is obligated to stick with an immigrant intent i.e., has no recourse to F1 visa in the future. So, I do not see why you cannot travel internationally and reenter using your F1 visa.

If you do not have a valid F1, and would need to get one stamped, then you might face questions at the consulate regarding your non-immigrant intent, given there is I140 processing going on for you. So getting F1 visa might be a bit more difficult, but definitely not impossible.

What if I applied for J-1 waiver and I-140 simultaneously? Do I have any trouble when I reenter the States with F-1 visa?