PERM, 140 approved, thinking to switch employer before my max out date and start PERM again

[Victor6996]

My max out date is 7/12/2017, so 365 days prior to max out date is 7/12/2016. My PERM was filed on 3/10/2015 under EB2 category and approved. Also I140 approved on 11/24/2015. But My company (end client, not a consultancy) has filed the Bankruptcy (under Chapter 11). Due to this, I am thinking to switch the employer in the month of Jan or Feb 2016.  Please help me by explaining the following scenarios:                  

1              Does my Employer (American end client) must have to revoke I140? Or is that an option left with Employer that he may opt to revoke?

2              After I switch the new employer B, he will need to start the GC process again for that starts with advertising may cause to failure or success in file the PERM before 7/12/2016, i.e., 365 days before the max out date 7/12/2017. Does this cause me to leave USA?

                a. Even though my I140 approved from employer A, if he may revoke I140?

                b. Even though my I140 approved from employer A, if he may NOT revoke I140?

 

3              Does my spouse’s H4- EAD would get cancelled upon switching my employers from A to B?

[ashuneel]

1. that is an option left with Employer that he may opt to revoke or not.

2. If  new PERM is filed after 7/12/16 and not approved in 365 days you need to leave US if original I-140 has been revoked.

3. Not cancelled. It will not be renewed if you cannot maintain status.

 If your H-1B employer has filed bankruptcy then underlying PERM and I-140  can be revoked by USCIS. How can they offer you permanent position if they do not have ability to pay or position may not exist due to bankruptcy.

[jairichi]

1. Employer's decision.

2. If I140 is not revoked you are fine to get H1B extension. If not you need to leave US.

3. If I-140 is revoked then she loses her EAD.

[Victor6996]

thanks very much for your response ashuneel and jairichi!!!

what I need to know is that if I move to different employer B -

the current employer will revoke I140, and employer B will make late what is the criteria?

Is that PERM to be approved BEFORE 365 days of max out i.e., 7/12/16 or just filing PERM is enough?

 

or

 

If the current employer will NOT revoke, will I be good in filing the delayed PERM after 7/12/2016 but not yet approved until Nov 2016, per se? Good means, I need not to leave USA.

 

Appreciated your efforts!!!

 

Thanks,

[jairichi]

thanks very much for your response ashuneel and jairichi!!!

what I need to know is that if I move to different employer B -

the current employer will revoke I140, and employer B will make late what is the criteria?

Is that PERM to be approved BEFORE 365 days of max out i.e., 7/12/16 or just filing PERM is enough?

 

or

 

If the current employer will NOT revoke, will I be good in filing the delayed PERM after 7/12/2016 but not yet approved until Nov 2016, per se? Good means, I need not to leave USA.

 

Appreciated your efforts!!!

 

Thanks,

 

PERM has to be filed a year before completing 6 years of H1B to get 1 year extension. Do not delay PERM with new employer if you are not sure whether your approved I-140 will be revoked or not.

[ashuneel]

Max out date does not matter  to you anymore as you have an approved and valid I-140 at this time. forget about the 7/12/16 date.

 

Since you have I-140 approved you will most likely get  3 yr H-1b when you move to employer B based on AC21 act. Assuming your join employer B on 1/1/2016 ( next week) he must file new PERM by 1/1/2018 so that you have 365 days to get PERM approved or get 1 yr extension after( starting 1/1/2019) that until PERM is approved.

[cmaj]

@Ashuneel

 

Isnt AC21 applicable only after I485?

[Victor6996]

ashuneel, regarding your response in #6 above, Recently it was observed that the H1B is extending upto the end the Purchase order in hand unlike the past 1 year or 3 years. will this would not be the case when I move to employer B?

 

Regarding your response in #2, what I have understood from you is, that I can get the H4 EADAP  for my wife now, which will be valid upto 2 years and move to employer B if I want that does not cancel the H4's EAD but I can't maintain the status for her as I have moved to different employer than the i140 approved employer from. Is that right?

 

Thanks very much for all your patience to respond.

[ashuneel]

@Ashuneel

 

Isnt AC21 applicable only after I485?

There are 2 parts to AC21 act. 1 part allows for change of job after I-485 has been pending for at least 180 days. 2 nd part allows  extension/new employment based on I-140 approval beyond the initial 6 yr limit.

[ashuneel]

ashuneel, regarding your response in #6 above, Recently it was observed that the H1B is extending upto the end the Purchase order in hand unlike the past 1 year or 3 years. will this would not be the case when I move to employer B?

 

Regarding your response in #2, what I have understood from you is, that I can get the H4 EADAP  for my wife now, which will be valid upto 2 years and move to employer B if I want that does not cancel the H4's EAD but I can't maintain the status for her as I have moved to different employer than the i140 approved employer from. Is that right?

 

Thanks very much for all your patience to respond.

 

#6 Yes, for that reason I mentioned you will most likely get  3 yr H-1b.  Sometimes PO, SOP, contract details mentioned in the H-1 filing will reduce the period of approval. It is unfortunate that employer cannot  guarantee employment/ project to last 3 yrs.

#2  H4 EAD will be approved with end date  same as H-1 beneficiary end date on I-797. If you move H4 EAD will still be valid as long as original I-140 has not been revoked. Best option is to ask  employer A not to revoke I-140 after you leave them. Since they are not required to do it most employers do not bother reopening your file once you leave. Although some employers do that just to cause trouble when you leave the job. If you can maintain good relations and convince them not to revoke it that will be best situation.

 I am still not sure how company A bankruptcy will affect the validity of I -140.

[Victor6996]

Thanks very much ashuneel for your detailed explanation.

 

Bankruptcy would affect my I-140 as it went to bankruptcy due to their business but does very much have capacity to pay salary. To my understanding that I-140 would get affect if the employer will not have capacity of paying salaries.