Hi, I live in Canada as PR, not Canadian. Worked in States on H1 for 6years and have I140 pending, but company laid me off, so I left US in 7 days. I need to visit US on personal business and have scheduled interview at US Consulate in Canada for B1/2 visa. Since the law office that handled my petition is doing the withdrawal, it's not being done yet, AM I able to go to Consulate and ask for visitor visa if I still have I140 pending and not withdrawn by my former company. And btw, whose responsibility is this to do so, company's or mine? Thank you so much for your helpful answers!
I-140 Immigrant Petition is an employer's (petitioner's) application and only your former employer can decide whether to withdraw it or not, as well as whether to provide any info, copy, etc, regarding the petition to you, as strictly legally speaking, it is the employer's property (with some minor AC 21 related exceptions which do not apply here). In assessing your eligibility for a B1/B2 visa, American Consulate in Canada will certaily take into the account that you previously worked in the US on an H-1B visa and even had I-140 filed, which are all going to be huge negatives in their mind, but then the positives are in the fact that your are a Canadian PR (landed immigrant) and that you left the US on your own after losing your job and that the I-140 was or is in the process of being withdrawn, etc. These are the factors you will need to explain in your application support letter and I would definitely suggest not applying for a visa stamp before your I-140 is withdrawn, or at least before receiving some sort of a communication from your previous employer or their counsel that the withdrawal was done and/or is in the process. I would also like to remind you that the whole process of withdrawal is not in your very best interest as you will lose the priority date of your I-140 which otherwise you may have kept if the I-140 were not withdrawn, even if you have to repeat the entire PERM and I-140 procedure again with another employer, but I believe you have some strong reasons for your personal business trip to the US warranting a withdrawal of I-140 and the visa application, so will need to work on re-applying again for a new priority date if you decide to return to the US and go through the procedure with a new (or even your previous) employer.
It is the company's responsibility to withdraw the I-140. If you no longer intend to permanently immigrate to the US, you need to be prepared to discuss that at the Consulate. You need to show how strong your ties are to Canada and how you essentially have no ties to the US. You have to show that you will more likely than not return to Canada. Having the I-140 on file does not preclude you from applying for a B-1/B-2, but it raises the question of immigrant intent.
Myron R. Morales, Attorney
Morales PLLC
[email protected]
I agree with my colleagues. I will add that while an application for a B1/B2 visa, while an I-140 is pending, is not impossible, it will be be far more difficult. The reason is that with a B visa, the applicant must prove non-immigrant intent; and an I-140 is specifically a petition for the beneficiary to receive an immigrant visa. Thus the intent will appear to the consular officer to be contradictory (this may remain even if the I -140 is withdrawn). However, it is not necessarily impossible to prove non-immigrant intent under this scenario if argued correctly and precisely (and you get an understanding and well trained officer). I highly recommend speaking with an immigration attorney about the assisting you with the B process in meeting the non-immigrant intent standard under these particular circumstances.
