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H-1b Transfer/extension With Approved 1-140 From Previous Employer

Discussion in 'Nonimmigrant Visa Validity' started by saneguy, Sep 13, 2016.

  1. saneguy

    saneguy Member

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    Hello Ron,

    I apologize if this was answered earlier but after searching the threads and not being successful at finding the answer, I decided to post a question here. Your response from the last post I had few years ago is sincerely appreciated and hoping to get insight on this one again.

    I'm past the six year H-1B period and currently on a one year H-1B extension as I write (my I-140 wasn't approved when they filed for the extension) and my current employer has now applied for a 3 year H-1B extension that is not likely to get approved until June 2017. I'm done waiting for the executive action to be "executed" by USCIS and planning to switch jobs. Once I switch to the new employer, they will have to start a new green card process, but can port my priority date as we know. Here's my question:

    I need to ensure my new employer can get a 3 year H-1B transfer/extension so they have enough time to get my new PERM/I-140 approved before my next H-1B renewal is due (else they won't be able to renew my H-1B).
    Will my new employer be able to do a H-1B transfer/extension of 3 years with the approved I-140 from the current employer when I'm currently on a one year I-797 approval? Or would they need me to have a three year I-797 approval with current employer to do that? I'm asking this to decide whether I should do a premium processing of my H-1B extension currently pending and only switch to a new employer after getting a 3 year extension from my current employer.

    Thanks and any other caveats you would want me to be aware about are highly appreciated!
     
  2. Eren Yildirim

    Eren Yildirim Attorney at Law

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    Hi Saneguy,

    Generally, an approved I-140 from a current company can be sufficient to obtain a three year H-1B approval beyond six years at a new company, (depending on the petition, of course).

    However, if the current company's I-140 is withdrawn before the new company's H-1B petition is approved, the new company's petition will be rejected, as an approved I-140 would not exist at that point.

    Eren
     
  3. saneguy

    saneguy Member

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    Just want to ensure I understand you correctly.

    -->Would I need an entire I-140 copy from my current employer to provide my new employer for a 3 year extension application? My employer is unwilling to give me the approval copy as it belongs to the petitioner. I believe I have a 1-140 receipt number. Would my I-797 approval be sufficient?

    -->By withdrawn, do you mean withdrawn by the employer or revoked/canceled by USCIS for fraud/error?

    What in your opinion is my best bet to ensure I get a three-year extension with my new employer?
     
  4. Greeeeencard

    Greeeeencard Guru

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    1->Receipt Number is sufficient.
    2-> Any of these
     
  5. Eren Yildirim

    Eren Yildirim Attorney at Law

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    Indeed, a receipt number should be sufficient. Also, withdrawn in any sense would result in the inability to get the new petition approved.

    Unfortunately, I cannot provide you with my legal opinion on how you should proceed, as I am not your attorney. If you would like to schedule a consultation, we can discuss your options.
     
  6. saneguy

    saneguy Member

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    Thanks Eren.

    Are there any risks related to getting the visa stamped if I travel internationally with a new H-1B I-797 approval from the new employer before my PERM or I140 gets approved for the new employer (considering the fact that I'm past my 6 years on H-1B)?

    Thank you.
     
  7. Eren Yildirim

    Eren Yildirim Attorney at Law

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    I believe you are asking if you can travel on an approved post-6th year H-1B. The answer to that is yes.
     
  8. saneguy

    saneguy Member

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    If I travel internationally in above scenario, I would have to get a visa stamped from the consulate outside of the US before returning back. My question was specifically around issues with getting a visa abroad with a pending PERM/140 with new employer and being on post 6th-year H-1B.
     

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