Extn with 140 and Job Change

[shilpa456]

Hi

 

I am in the 7th year of my H1 now with extension using the approved I140 of the previous employer. Current employer has filed for PERM recently.

 

In this situation, can I switch jobs? Will the new company will file for H1 Transfer and then they can continue to extend me using the I140 forever (if PERM is not filed)?

 

Thanks in advance for help!

[jairichi]

Hi

 

I am in the 7th year of my H1 now with extension using the approved I140 of the previous employer. Current employer has filed for PERM recently.

 

In this situation, can I switch jobs? Will the new company will file for H1 Transfer and then they can continue to extend me using the I140 forever (if PERM is not filed)?

 

Thanks in advance for help!

You can switch jobs as long as I-140 is not revoked.

[shilpa456]

The previous employer had withdrawn the I140...so does that mean I can no longer switch jobs?

[jairichi]

The previous employer had withdrawn the I140...so does that mean I can no longer switch jobs?

With a withdrawn I-140 your new employer can file a cap exempt H1B petition only till the duration you have been currently approved with existing employer. 

[shilpa456]

Thanks a lot Jairichi. Last few questions in that case. 

 

1. The new employer will have to get me an approved PERM before the expiration period...or apply for PERM 12 months before the end date (to get the usually called 7th year extn)

Or

2. The new employer will have to file a new H1B petition.

 

After that I can still use my current PD. But if I can still use my PD why cant it work for extension with the new Employer? I hope I made my scenario clear

 

Emp1 filed gave me an approved I-140. I left the company and they withdrew I-140

 

Emp2 transferred by H1 and was not aware of I-140 at all. 6 years ended on H1 but got an extn using the I-140 of Emp1. PERM filed but not approved as yet

 

Emp3 is giving me a new offer

[jairichi]

Thanks a lot Jairichi. Last few questions in that case. 

 

1. The new employer will have to get me an approved PERM before the expiration period...or apply for PERM 12 months before the end date (to get the usually called 7th year extn)

Or

2. The new employer will have to file a new H1B petition.

 

After that I can still use my current PD. But if I can still use my PD why cant it work for extension with the new Employer? I hope I made my scenario clear

 

Emp1 filed gave me an approved I-140. I left the company and they withdrew I-140

 

Emp2 transferred by H1 and was not aware of I-140 at all. 6 years ended on H1 but got an extn using the I-140 of Emp1. PERM filed but not approved as yet

 

Emp3 is giving me a new offer

Approved PERM will not get you an extension. Only a PERM or I-140 pending for more than 365 days or approved I-140 will get you an extension beyond 6 years.

If approval of H1B with employer 2 beyond 6 years was approved after withdrawal of I-140 by employer 1 then it was approved as error by USCIS.

[shilpa456]

So...should I worry about this? Also, if in case the I-140 is not withdrawn...does it change anything in terms of changing of employers now?

[jairichi]

So...should I worry about this? Also, if in case the I-140 is not withdrawn...does it change anything in terms of changing of employers now?

Yes, you need to talk to a good immigration attorney asap. If I-140 is not withdrawn then any employer can file for 3 years extensions.

[ottawa_rocks]

Approved PERM will not get you an extension. Only a PERM or I-140 pending for more than 365 days or approved I-140 will get you an extension beyond 6 years.

If approval of H1B with employer 2 beyond 6 years was approved after withdrawal of I-140 by employer 1 then it was approved as error by USCIS.

I don't agree with Jairichi, once you have an approved I-140 for more than 6 months, even if your employer withdraws your 140, you can use that old 140 to keep getting h1b extensions beyond 6th year. Period !

[jairichi]

I don't agree with Jairichi, once you have an approved I-140 for more than 6 months, even if your employer withdraws your 140, you can use that old 140 to keep getting h1b extensions beyond 6th year. Period !

No, it is not the case. Once an I-140 is withdrawn OP will be able to maintain H1B status only till the time H1B extension was approved when I-140 was active.

[pontevecchio]

If one has an approved I-140 extensions beyond the usual 6 years are possible and the petition approval is still valid if the I-140 were to be revoked. Once the I-140 is revoked no subsequent H1 extension beyond the initial 6 years is possible. No periods involved.

[ottawa_rocks]

If one has an approved I-140 extensions beyond the usual 6 years are possible and the petition approval is still valid if the I-140 were to be revoked. Once the I-140 is revoked no subsequent H1 extension beyond the initial 6 years is possible. No periods involved.

So what you are saying is that : if an approved 140 (valid since 6 months) has been revoked by the employer on the 181st or the 999th day or whatever, then that employee can NOT get h1b extensions beyond his regular 6 years ? I highly doubt this.

[ottawa_rocks]

Another example: Mahesh is on his 2nd h1b extension, in his 4th year and had an approved 140 for 6 months of time before he moves out to another employer (h1b approved for 2 years) and then his old employer asks Uscis to revoke the old approved 140.

 

Now 2 years pass and mahesh is in his 6th year of h1b and tells his new employer to file for an extension:

 

1. So as per some forum members here, Mahesh CANNOT have this h1b extension done because his old approved 140 was revoked by his employer? My argument is that since mahesh had a valid 140 approved for 6 months, he can get h1b extensions done even after his old employer revoked or whatever.

 

2. Mahesh has no choice but to leave america for atleast 1 year before the whole h1b 6 year cycle refresh can occur.

[pontevecchio]

Say one has I-140 approved last week and his 6 years of H1 are over soon. Any Employer can file a H1 petition for a three year period as an extension based on the approved I-140. Say a new employer or the old got a three year extension. The next day the I-140 employer say revokes the I-140 and that is on record and approved in a few days. The 3 year Extension granted STANDS.  No further H1 extensions after the 3 years will be granted unless another employer gets an I-140 approved.There is no connection or symbolism in the word 180 days.

[ottawa_rocks]

So basically it means you are an employers dog all the time - thanks to the 140 policies !

Another interesting questions:

Let's say an employee has approved 140 eb3 from employer A & he never revokes his 140

Same employee now moved to employer B and ported & got approved 140 eb2 & later employer B revoked his 140 eb2

In this case - does this employees employer A approved 140 eb3 stay valid to get him 3 yearh1 extensions ?

Since date is ported too I am not sure

[jairichi]

So basically it means you are an employers dog all the time - thanks to the 140 policies !

Another interesting questions:

Let's say an employee has approved 140 eb3 from employer A & he never revokes his 140

Same employee now moved to employer B and ported & got approved 140 eb2 & later employer B revoked his 140 eb2

In this case - does this employees employer A approved 140 eb3 stay valid to get him 3 yearh1 extensions ?

Since date is ported too I am not sure

Employer A's approved I-140 in EB3 is valid as it was never revoked.

[ottawa_rocks]

Employer A's approved I-140 in EB3 is valid as it was never revoked.

Thanks Richi,

 

1. What are some of the most efficient methods of finding out if an employee's 140 is still valid & NOT revoked? Going to attorney and spending thousands to find it out is not the answer i am looking for.

[jairichi]

Thanks Richi,

 

1. What are some of the most efficient methods of finding out if an employee's 140 is still valid & NOT revoked? Going to attorney and spending thousands to find it out is not the answer i am looking for.

Ask employer directly. This is the most direct way. FOIA is the other option.

[ottawa_rocks]

Ask employer directly. This is the most direct way. FOIA is the other option.

FOIA is thousands of dollars slap done via attorney, doing it by myself = not sure how simple or complicated it will be, employer (especially old one's) barely reply or talk.

[jairichi]

FOIA is thousands of dollars slap done via attorney, doing it by myself = not sure how simple or complicated it will be, employer (especially old one's) barely reply or talk.

I agree. I can't think of any other option.