H1B transfer/renewal with limited validity based on I-140


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Hello All,

 

I know these kind of questions may have already been  discussed in the forum and I have researched through it to find answers. But, you also know that each immigration related situation may still be different and unique. Hence I'm posting my situation to get all the answers in one place. I would be consulting an attorney too, but wanted to have some homework done before that

 

I'm on H1B with approved I-140 in EB3 and I'm in my 8th year of H1B and before that I was on L1B for 2 years (so I suppose it counts together as 10 yrs). My I-140 was approved over 4 yrs ago and since then have been with same employer A. My H1B is expiring in 3 months and my employer has not yet filed for H1B renewal yet as I'm currently out of project and employer wants to file  once new project starts.

 

My question is what is the best option for me without jeopardizing the status and H1B renewal/extension and retaining priority date

 

1. Could I transfer my H1B to another employer B with so less time in H1B expiration and if so, then will I only get transfer for remaining 3 months of H1B validity (based on current H1B validity and I-140 from current employer A) or could I possibly get H1B transfer plus extension done together for 1 to 3 yrs with new employer B?

 

2. In scenario 1, how soon new employer B should start the PERM / I-140 process. I know the sooner the better, but is there a time limit by which it must be started or else I lose status or priority date of existing I-140

 

3. Could I port my I-140 and priority date from EB3 to EB2 category with new employer B and if so what all I need to ensure for safe portability. Like similar job, copy of I-140 and should not have been revoked. Any other things to be considered or kept in mind to ensure safe portability

 

4. Is it advisable to have my current employer A file H1B extension right away without much supporting docs for project or show some internal project? How risky is this?

 

5. What happens to my status if my H1B is filed late but a decision is not made until expiry date of current H1B? Is there a time limit by which if I don't have approved H1B, then I would be out of status and have to leave the country?

 

Please Advise

 

Thanks

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1. A new employer can file and get you three years based on the approved I-140.

2.PD retention has no time restraints. If you get a 3 year H1 extension, that will give you time to find a new sponsor for the GC.

3. Similar job not required. Proof of approved I-140 is good. Revocation is immaterial in most cases

4. He files and not you and only if he has a project for you. This is what has happened. It seems getting an I-140 approval is easier than maintaining H1 status.

5. If you are out of status when the H1 extension is applied for, you may need to leave and return with the H1 visa if the petition is approved

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1. A new employer can file and get you three years based on the approved I-140.

2.PD retention has no time restraints. If you get a 3 year H1 extension, that will give you time to find a new sponsor for the GC.

3. Similar job not required. Proof of approved I-140 is good. Revocation is immaterial in most cases

4. He files and not you and only if he has a project for you. This is what has happened. It seems getting an I-140 approval is easier than maintaining H1 status.

5. If you are out of status when the H1 extension is applied for, you may need to leave and return with the H1 visa if the petition is approved

 

Thank you for the response. However, could you please clarify point 4 and 5 further

 

4. In worst situation, the employer is willing to file H1B with some internal project work. Should I take this approach and his suggestion? what is the amount of risk with this and chances of approval/rejection?

 

5. I would like to know if my H1B renewal/transfer must  be approved before the current one expires to maintain status? if not, then is there a time limit (after the current H1B expiry date) within which if I don't have a decision on my petition, then would I be considered out of status or am I good as long as decision is pending from USCIS?

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