Change of employer - I-140 approved - Apply GC with new employer - first 6 years expiring Sept 2015

[jazzbha1234]

Hello there, 

 

I had a question regarding my immigration case and wanted to put this question out there seeking help and advise. 

 

1.) I have my H1-B visa stamped on passport for first 6 years expiring in Sept 2015 with previous employer A. 

2.) PERM went thru and I-140 approved with Feb 2013 priority date with employer A. 

3.) Recently shifted to new employer B, H1-B visa got approved with new I-797 having expiration for sometime in 2017, started working for them with the understanding that they will start my GC as soon as my H1-B gets transferred successfully. 

4.) After starting with them, Employer B attorney now say they have a "standard" wait period for 6 months to start my GC process meaning they would have to file my Labor, get the PERM and then get my I-140 in process after 6 months of my service.   

 

My question is: 

1.) If I wait for 6 months starting Oct 2014, employer B will then file my labor around April 2015. PERM/labor will take around 6 months which will end in Oct 2015 to arrive and then they will apply for I-140 with the earliest priority date. Will this be an issue as my first 6 years are expiring in Sept 2015 itself and per the 365 day rule, PERM needs to be approved by the current employer 365 days before your 6th years ends? Am I correct? or am I missing something? 

 

I asked the same question to the attorney for employer B and they responded as below: "You will reach your maximum stay in H status on Sept 2015. You have an approved I-140 petition with a priority date of Feb 2013. As such, since a PERM was timely filed on your behalf by your prior employer A, you remain eligible to continue extending your H in one year intervals beyond Sept 2015 until you receive your green card. You retain this benefit even if your prior employer withdraws the approved immigrant petition (I-140). In addition, if your prior employer does not withdraw the approved immigrant petition (I-140), you remain eligible for three year H extensions until you are able to file the last step of the green card process. Therefore, at this time there are no issues with your status and your ability to maintain work authorization. Since you have been in the U.S. for a number of years, we will follow our usual process and file a PERM for you as soon as we can and we will request your early priory date."  

Please advise to the earliest. 

Thanks much !! Appreciate the time and effort in advance. 

[pontevecchio]

Based on the approved I-140 you got a 3 year extension which stands on its own.

[jazzbha1234]

But what about my labor with the new Employer B? Whenever they will file (after 6 months hopefully), I will have my previous labor voided right? So even though I have got a 3 year extension, shouldn't it be the case that labor be filled with the new employer before 365 days of 6th year ending date? 

 

I might be missing something. Could you please clarify or elaborate more on what you mean to say pontevecchio? 

 

Thanks much!

[pontevecchio]

Based on an approved I-140 you are eligible for 3 year extensions of the H1 beyond the initial total of 6 years. So your H1 till 2017 will not go away even if the previous I-140 were to be revoked now. You have time till 2017 in any case.

[mohanbabu400]

Your attorney clearly explained about your status and what can and can't be done. I don't understand what you are missing here. Don't you trust an immigration attorney?

[jazzbha1234]

@pontevecchio: So what I am understanding is - If my H1B is vaild beyond the first 6 years, I should be fine even if my employer B files PERM after that initial 6 years period? And new PERM can be filled 365 days before the H1-B expiration date in 2017? 

 

@MeghaD: I am trusting them but just wanted to confirm as I have heard stories and known people where the employer attorney's do misled them. And I trust this good forum here where people at least selflessly help out other folks sailing in the same boat! 

 

Thanks much!

[pontevecchio]

Based on the limited information on hand your understanding is correct. Employers lawyers work for them and are subject to their diktat though they are not allowed to do illegal acts. Your current H1 remains valid. PERM can be filed at any time.