I140/H1B extension/Employer change - Confused!

[mraji03]

 

I have been working for company A for more than 5 years and my GC is in processing - I140 approved with a PD of Sep 2009 under EB3 category. Since I got promoted a year ago, they are ready to change from EB3 to EB2 category. 

But I also pursued MBA in the mean time and about to graduate this June. I have plans to look for a new job based on my MBA degree and career aspirations. My 6 year H1B is already expired and I am on the first extension. The extension expires this Dec 2014. With regards to all these, I have some questions.

 

1. Can the H1 transfer application of the new company and H1 extension application process of the old company happen at the same time? Because I plan to move to new company only if H1 transfer goes through fine

2. Since I have crossed the 6 years of my H1, will I get 3 years in the new H1 transfer? Or will there be any problems with that because I won't have my GC processing with the new company yet?

3. After I move to a new company, what if my old company revokes my I140? Can I retain the PD when the new company will be ready to process my GC with the EB2 or EB3 category?

4. How sooner should I start my GC process within the new company a) assuming I got H1 extension for less than 3 years b) assuming I got H1 extension for 3 years

5. A general question - Will the H1 transfer of the new company approval depend on my I140 with the current company A? 

6. Will I be in status if a) I stay with the current company and the EB3 to EB2 gets denied? Assuming it depends on my H1B validity - is this right? b) I move to a new company and when they do their GC processing it gets denied?

 

Could you please clarify these? This would really help in my decision. Thanks a lot in advance. 

[pontevecchio]

1. Ask the new company to file with PP and once approved give notice and join them. Both H1 petitions can be filed at the same time.

2. As long as the I-140 is not revoked before the extension with the new company no reason why not.

3. Yes.

4. You are entitled to extensions based on company credibility. The company will decide when to file PERM etc. if at all. You have to discuss this with them.

5. Nothing called H1 transfer. A crude way to define change of employer. Always a new H1 petition. If your I-140 is not revoked you will be entitled to a 3 year extension all other things being equal.

6. Yes. You can get H1 extensions and continue to be in status for the years it takes. If you get a 3 year extension then that extension stands even were the I-140 to be revoked later on . Immaterial whether 10 companies file PERM and are denied.

 

Having said this EB3 to EB2 is only possible for a substantially different position with the new company and one cannot use experience gained with the company. I strongly urge you to discuss all these matters with a Good Lawyer.