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Job Change With Approved I-140 Beyond 6 Yrs Of H1b But Awaiting Adjustment Of Status

Discussion in 'AC 21 I-140 Portability' started by MP1, May 18, 2015.

  1. MP1

    MP1 New Member

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    Hi I am currently on H1B (14th yr), with approved I 140, but awaiting dates for the adjustment of status.

    My question is can I change jobs based on the approved I 140 or advisable to wait for the I140 portability to come into effect.

    Also can my current employer revoke the I 140 or cancel the pending GC application and will it have any effect on my H1B transfer if I decide to move to a new employer ?
     
  2. MP1

    MP1 New Member

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    Any advice ?
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You don't have portability until an I-485 has been on file for at least six months.
     
  4. MP1

    MP1 New Member

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    Thanks for the clarification, a couple of follow on questions :

    - I have heard instances where applicants beyond their 6 th year with an approved I 140 may have used the validity of the H1 (based on the I 140), to change employers, but they have to re-start their GC process from PERM and once they get I 140 approved, they could port their original priority date.

    Is this accurate ? And if yes then :

    - If the original employer revokes the I 140 OR withdraws the GC case (is this doable??), will it have any impact either on the H1 Transfer, or the GC Priority date or will it cause an RFE in the long term if not for any issues in the short term.

    Also with the impending I 140 Portability (executive action), will it be more prudent to wait out till it becomes effective, any information on when USCIS is planning to announce it, if you are aware ?

    Appreciate the guidance.

    Thanks.
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If you do not have an I-485 that has been pending for more than 180 days, an I-140 revocation makes you ineligible to apply for further H extensions or adjustment of status (based on that I-140).
     
  6. MP1

    MP1 New Member

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    Thanks !!

    Ok in this case, if the new employer files for GC (and PERM and I 140 gets approved), can the original priority date be ported over to the new GC filing or even that is lost ?

    Also if the new I 140 comes through, can it be used for getting h1 extensions, knowing the original i 140 was revoked/ cancelled by the initial employer ?

    I assume the H1 transfer will happen without issues, since the current employer may not know till it is actually transferred , is that accurate or even the H1 transfer will face issues ?

    I currently have ~ 2.5 yrs on an approved I 140, and am weighing options to change employers.
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You get to keep the original priority date unless it is revoked for mistake or fraud. If you get an H transfer and then the old employer withdraws the I-140, you get to keep the post-sixth year extension.
     
  8. MP1

    MP1 New Member

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    Will there be any issues with the new employer I 140 application with the assumption that old I 140 is revoked.

    And if the new employer filed I 140 comes through, can it be used for getting future H1 extensions without any issues (knowing the original i 140 was revoked by the initial employer) ?

    In all if these are possible, then does the I140 portability (executive action) make life easier by keeping the I 140 alive and takes away the authority from employers to cancel them and also avoids the applicant to go through a new GC filing process (and I know the rules are not official as yet but any direction can help).

    Thanks and really appreciate your advice.
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes, the new I-140 approval will act to remove the six year limit.
     
  10. MP1

    MP1 New Member

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    Thanks, slightly shifting gears, another option I was looking at was applying in EB1 (right now I have an EB2), with a Master degree in Sciences and 12+ yrs US experience.

    In your experience have you seen anyone applying for an EB1 with this profile (other than the usual cases with PhD and post doctorates or international executives).

    Thanks.
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Not successfully.
     

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