Changing Employers on H-1B

[Attorney_25]

Extension with I-140 Revoked, Continued:

 

Jay - I appreciate the question and request for clarification. The general rule is that one needs to have the approval in hand to be able to request 3 year extension of beyond the six years.  If the I-140 has been revoked a person does not have an approval in hand so normally an extension of additional time will not be given.  However, the government has been silent on the issue of using that time that one has already obtained based on an extension beyond the original six years.  In the absence of guidance the approach should be conservative, try not to rely on this type of extension and be prepared for a decision that can go either way.  At the same time we have seen several approvals on this types of case, and have not seen any denials. Perhaps I should modify my previous answer to say in the absence of guidance it is risky to file for such a COE (change of employer) but we have seen approvals in the past and it appears to be working for now though it may change at any time.

 

New H-1B with Prior-Approved I-140/Cap-Exemption:

 

Please read the information at http://forum.murthy.com/index.php?/topic/71540-h-1b-cap-issues/page-2#entry280015 and http://forum.murthy.com/index.php?/topic/72014-changing-employers-on-h-1b/#entry280513. Having an approved I-140 does not change this situation. If USCIS accepts the petition as cap-exempt, then the I-140 will allow for the petition to be approved for a full 3 years. If USCIS does not accept the petition and says you are subject to the cap, then it won't matter if you have an I-140 approval as you would be eligible for a 3-year approval anyway. Where the person has actually held H-1B status within the previous 6 years, even though counted much earlier, prior experience shows USCIS may accept a new petition as cap-exempt. However, this is another issue where USCIS seems to be applying a policy that is not written anywhere, and relying on it is risky.

[Attorney_25]

Please note this thread will be locked on Monday morning. Please post your questions before then.

[Nbandari]

Thanks for your time and patience in answering my queries. Have wonderful time.

 

Thank You

Jay

[laxmanklx]

Hi ,

 

My friends previous H1B with employer A expired in 2011. Now Employer B from India has filed for the extension under regular processing but its been a while I did not get approval notice i.e. I-797. I got an offer from Employer C and he is ready to do premium H-1B extension. Could you please confirm on below.

 

      1. since employer B extension is not approved effective today , can employer C can do premium extension on Employer A's expired petition i.e. I-797. ?

     2. If Employer C starts extension on Employer A's pettiton ( premium processing ), in between if Employer B's extension petition pending for long time gets approved, will Employer C's extension request on Employers A petition will be cancelled or still Emplooyer C can do the extension?  

 3.  Becuase by the time Employer C submits the petition if Employer B has already got extension for Employer A's petition ( not sure if EMployer A's petition gets cancelled in this case ), will employer C's petition be invalidated or it still ( Employer A's petiton )can be transferred to Employer C?

 

Thanks

 

 

 

Thanks

[Attorney_25]

Laxman, I already gave information on a similar issue above and the facts in your case are not clear, but I will say an extension cannot be filed based on an expired petition unless there were circumstances beyond the control of the beneficiary that caused the extension to be filed late. The circumstance of filing one change of employer petition and then deciding to switch to another employer generally does not fit the test of "circumstances beyond the control..." However, "Employer C" can always file a "consular" petition (selecting "New" on the I-129), and the petition can be approved, without an I-94, and the beneficiary can leave the US, go to a consulate in his home country to apply for a visa (generally a third country such as Canada will not work in this situation), and return to the US, receiving a new I-94 which will authorize work for Employer C.

 

If Employer B's pending petition is approved, this will not cancel Employer C's petition. It will make it potentially approvable for extension of stay (I-94) rather than only consular.

 

My understanding of your facts is that Employer A's petition expired after Employer B's petition was filed but before Employer C's petition was filed, and Employer A did not file an extension. It seems the beneficiary must have moved to employment with Employer B then. In general, subject to the exception above, Employer B's petition needs to be approved and then serves as a "bridge" for Employer C's petition to be approved with extension of stay.

 

Again subject to the exception above, beneficiary must be working according to the terms of an approved petition or timely-filed extension in order for a subsequent petition to be approved with extension of stay.