Perm Rejected in 7th Year

[bravefoxatlarge]

My current employer filed my PERM in January 2010, 5 years into my H1 and I got my 7th Year extension and currently have it upto Jan 2012.

My PERM case went into audit in Dec 2010 and a reply was given in early Jan. In May 2011, my PERM was rejected because of a minor error (multiple job locations was not specified in the govt. job website).

My employer's attorneys have instantly filed a re-appeal.

I am told that if it gets into the govt. error queue, I will hear back soon enough (1-2 mths) but if it goes into the reconsideration queue, it will take upto 18-24 months, until which my H1 will be valid / can be extended.

My attorney has also promised that he will start processing another PERM application if the current PERM does not go into the Government error queue.

Now, I am contemplating switching companies, and my prospective new employer promises to process PERM as soon as I join his company.

If I were to take up the new job now transferring my H1, what will happen to my H1 status beyond Jan 2012? Will I lose my H1 status after Jan 2012 because my earlier PERM filed by my old company is not valid anymore because I switched?

Thanks for your help

Rohan

[Attorney_20]

The validity of a PERM case does not end just because you no longer work for the sponsoring employer. The answer to your question really depends on whether the current employer still intends to sponsor you for the future green card job and whether they will continue to pursue the labor certification filed on your behalf even if you left the company to work for someone else on H1B status. If so, then you still have a basis to extend H1B beyond the normal 6 year limit.

However, if the current company intends to withdraw the PERM case if you leave, you would have to get the new employer to file and obtain approval of an H1B Change of Employer petition BEFORE the labor is withdrawn.

Once the H1B petition for the new company is approved (it's best to file via Premium Processing), the new company could then possibly get a new labor filed and certified and an I-140 petition that's filed via Premium Processing approved before your I-94 expires (which presumably would be in January 2012 after the new company gets the H1B Change of Employer petition approved). As the beneficiary of an approved I-140 with a non-current priority date, you could then extend H1B in 3 year increments while that case is pending.

There are other considerations to think about when trying to maintain nonimmigrant status while pursuing a green card. You should definitely speak with an experienced immigration attorney to make sure you are not creating gaps in your nonimmigrant status.