Legal Question in Immigration Law in Virginia

Hello,

Question on switching jobs with an approved I-140 but nearing end of the 1st 3year H1B extension.

Facts below, followed by Q�s:

Original 6yr H1B term ended Oct�11

Labor Filing (PD): Apr�11

I140 approval: Jun�11

Category: EB2 India

First 3yr H1B extension ending Oct�14

Time with Current Employer: Since Dec�06

I am now examining changing employers (to another fortune 100 co.). The new employer would like me to start ASAP. The new position would be in the executive cadre though in the same work area as the one in which I work for the current employer.

Questions:

1) Since I am 4+ months from a second H1B extension, which is not going to be enough to file a new labor and gain a new I140 with the new employer, is it better to first get a 3yr extension with the current employer and then move with the expectation that the new employer can transfer the H1B onto them? Can you shed light how my case relates to any applicable provision of AC21 on job portability (can't figure out that since I can not file AOS due to lack of visa numbers, if I qualify or not)?

2) If the H1B extension is initiated by my current employer now (in view of the upcoming expiry) and lets say comes through by July, will that extension be applicable Jul�14 onwards or for the 3yr period post Oct�14 i.e. when the current term ends. Trying to see if I could move in August after getting extension approval through the current employer but prior to the current H1B extension ending. Unless current employer/USCIS revoke the H1B extension if I shift employers prior to Oct�14?

3) What is the average length of time for filing a new labor and getting I140 approval? It was about 6 months end to end in 2011 when I had it done last. I would be moving to NY if that matter from a service center perspective.

4) Since the new proposed rule for granting EAD to certain H4 holders (my wife would currently qualify) is expected to come through by end of the year, the answer to #3 may have a bearing on how much down the road would I be kicking her EAD if I moved employers now. This is assuming the current employer revokes I140, and the requirement is that there be an approved I140 be present in addition to being in the extension period past the 6yr H1B term when an EAD is applied for the H4 holder.

Thanks for providing this very knowledgeable resource pro bono.


Asked on 5/23/14, 7:37 am

1 Answer from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

Your questions are far too detailed for this type of forum. However, the prospective new company should have an immigration attorney to answer them for you before you make the move.

Keep in mind that you cannot port (for purposes of the greencard) until the I-485 is pending for 6 months. This means, if the petitioner does not want to sponsor you once you quit, then you will not be able to use their approved I-140 for your AOS.

You are correct in that it's better to obtain your next AC21 H-1B extension before you make a move, but, again, the attorney for the company you wish to transfer to should be the one advising you on that.

DOL PERM processing times are about 7-8 months, You can premium process the I-140.

An H-1B transfer should not affect your wife's ability to obtain an EAD, once the new regulations is published in the Federal Register.

Read more
Answered on 5/27/14, 11:32 am


Related Questions & Answers

More Immigration Law questions and answers in Virginia