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I140 Process - Out of Country/H1b Expire

Discussion in 'Immigrant labor certifications (PERM)' started by ramkumar1, Jan 29, 2012.

  1. rafi

    rafi New Member

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    Thank you Ron, that was so quick .
     
  2. Dhananjay Rai

    Dhananjay Rai New Member

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    Hi Ron,

    I was following this forum and found it to be very useful. First off, thanks for helping people with special and complicated immigration questions.
    I have a similar situation, request your advise please.

    My H1B is expiring in August 2015 (6 year + recapture time already used). Perm (EB 3) was filed late and looks like I-140 will be approved by December 2015 (if doesn't go for audit). I will have to leave the country in Aug 2015.

    Understand from your comments above that once I-140 is approved, my employer can file for an extension even before 365 days. Also, the extension will not be subjected to the annual limit.

    My questions are:
    1. Once I-140 is approved, will my employer need to file an extension to the expired visa or for a fresh h1b?
    2. Do I need to continue working for for the same employer abroad during this period (between current visa expires and h1b extensión is filed)?
    3. I have a valid B1 visa. If my employer transfers me to any location outside US during this period, is it advisable to return to US on B1 for a month or two and work for this employer? There is a project in october this year which i do not want to miss.
    Please advise. Thank you in advance.
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You are not allowed to work while in B1 status. Either your current employer or another may file a new H1B petition for you when your I-140 is approved. You will not be subject to the quota.
     
  4. Dhananjay Rai

    Dhananjay Rai New Member

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    Thanks Ron.
    As I have to leave in Aug 2015 due to visa expiry until I-140 is approved, do I need to continue working for for the same employer abroad during this period (between current visa expires and New H1B is filed)?
    or can i work for any other company outside US during that period?
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    What you do outside the U.S. is your business.
     
  6. Dhananjay Rai

    Dhananjay Rai New Member

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    Appreciate your prompt advise Ron!
    one more question please - Should the Job Description / Job Title in new H1B Petition match with what has been approved in I-140?
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Not unless that information is accurate.
     
  8. Dhananjay Rai

    Dhananjay Rai New Member

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    Ok, I am working as a Manager and the I-140 has also been filed for as Manager. My employer wants to promote to General Manager's position. can the new H1B petition (once I-140 is approved) be filed for General Manager position without jeopardizing the I-140 approval when the PD becomes current?
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Here is the issue that might come up. When you adjust status, they will see your H petition and note that it is for a higher ranking position than the PERM job offer. Now, the good news is that it is likely that the administration is going to grant some kind of PERM portability that will allow people to accept promotions without losing eligibility.
     
  10. Dhananjay Rai

    Dhananjay Rai New Member

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    Thanks a lot for the advise Ron!

    As i will have to leave US in Aug 2015, I have found a job with an another employer in my country. They have also offered me to get L1A for me when i am eligible. In the mean time, my current employer will continue with Perm and I140 process and most likely it will be approved by Dec 2015.

    Per USCIS for L1 petition- "Employee must be working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States"

    my understanding is i will have to continue working for the new employer for at least one year before the L1 petition can be filed. my question is:

    Can this one year requirement be waived off in case the I140 is approved. in other words, can my new employer file for L1 before completing one year with them, based on my approved I140?

    please advise. thanks
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Good question. Unfortunately, the USCIS takes the position that you must complete one full year abroad before the petition can be filed.
     
  12. Dhananjay Rai

    Dhananjay Rai New Member

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    Thanks Ron! So basically, it is possible to obtain H1 visa without completing one year abroad based on approved I140, but not the L1.
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes.
     
  14. Dhananjay Rai

    Dhananjay Rai New Member

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    Ron, appreciate your advise. Is it advisable to file for an extension of H1 with regular processing to buy some time while my perm is being processed? so that i do not have to leave the country for around 3-4 months? The petition will however be denied as i have already used 6 years?
    My visa expires in Aug and I-140 is likely to be approved by December. in case the denial comes before the I140 approval, i will leave the country but it I will be for a comparatively shorter period of time. Tough, I do not want to do something that might jeopardize my case.
     
  15. Ron Gotcher

    Ron Gotcher Attorney at Law

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    What is the basis for the extension?
     
  16. Dhananjay Rai

    Dhananjay Rai New Member

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    Ron, it will be extension request for renewal of current H1b. (which i know i will not get but just to buy some time).....I was on L1 for first 3 years and now on H1 for the last 3 years and i have used my recapture days already.
     
  17. sukhbir kaur

    sukhbir kaur New Member

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    Ron - I hold an academic H1 from a higher education institute and I am on my 7th year of H1B with approved I-140. Since my H1B is not transferable unless it is to another institute of higher education OR non-profit, I am kind of stuck here.
    My question is since I have an approved I-140, can another employer file a new H1B for me under the regular quota using this approved I-140? If so can he do it anytime of the year OR should wait till next fiscal year quota to do this?
    Thanks for your time & Help.
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You would have to go under the cap. There is a loophole where you can remain where you are part time and get a concurrent full time job with a for-profit petitioner and not be subject to the cap.
     
  19. Dhananjay Rai

    Dhananjay Rai New Member

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    Ron, it will be extension request for renewal of current H1b. (which i know i will not get but just to buy some time).....I was on L1 for first 3 years and now on H1 for the last 3 years and i have used my recapture days already.
     
  20. sukhbir kaur

    sukhbir kaur New Member

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    Ron - So If I get a part-time job with another employer, can he file a new H1-B without the cap anytime? OR are there any restrictions?
     

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