7th year H1 extension after 140, no 485 and changing jobs

[Sc3]

Hi all,

I understand it is possible to apply for H1 extension if you have entered the GC torture system for more than 365 days. I read in the Rajiv's FAQ that if 140 is done one can change jobs and still maintain the priority date. My question is that for people nearing the end of H1 term ( < 1 year left) and thinking of changing jobs ( while keeping priority date) will it be possible to still apply for 7th year extension based on the priority date of the previous application (since one will have to start a new GC process) in the new job position.

Thanks,
Sc3

[Sc3]

Bump!, Somebody please advise if this is possible.

Thanks in advance,
Sc3

[rest_2004_free]

Valid scenario...

Working in Comp A, applied labor before 6th year starts, ie labor has been pending for more than 365 days when 7th year of H1 needs to be renewed. Applied 140 while working with comp A, got it approved. You have the copy of 140 notice that says the application has been approved.

After 140 was approved, you can change your jobs to Comp B if you want to preserve the PD. It does not matter whether the employer of Comp A revokes the 140, all you need is a copy of the 140 approval notice. Make sure INS does not revoke that 140 by itself saying it was applied in fraud etc -- remote chances anyway.

Now that you are in comp B, you can keep extending your H1 with them. Whether you will get 3 year increments or 1 year increments with the comp B I am not sure. Maybe it is better to stick with comp A and get 3 year increment of H1, transfer the H1 then apply PERM with the new company...at the time of applying 140 with comp B use the old 140 approval from comp A and make sure you put a colorful page saying you are claiming older priority date in the application of 140. This idea was given by Murthy. When 140 is approved with comp B you will get the priority date of comp A labor.

Read the memo from rajiv as attached.

Originally Posted by Sc3

Bump!, Somebody please advise if this is possible.

Thanks in advance,
Sc3

[san12]

I had my labor application approved through company A in 2003 and I-140 was filed. I had to quit the company A before I-140 approval. I am going to complete six year in less than one year's time. Can I apply for seventh year extension on the basis on approved labor through company A?

[Sc3]

Thanks for info!

[CALCA]

Originally Posted by rest_2004_free

Valid scenario...

Working in Comp A, applied labor before 6th year starts, ie labor has been pending for more than 365 days when 7th year of H1 needs to be renewed. Applied 140 while working with comp A, got it approved. You have the copy of 140 notice that says the application has been approved.

After 140 was approved, you can change your jobs to Comp B if you want to preserve the PD. It does not matter whether the employer of Comp A revokes the 140, all you need is a copy of the 140 approval notice. Make sure INS does not revoke that 140 by itself saying it was applied in fraud etc -- remote chances anyway.

Now that you are in comp B, you can keep extending your H1 with them. Whether you will get 3 year increments or 1 year increments with the comp B I am not sure. Maybe it is better to stick with comp A and get 3 year increment of H1, transfer the H1 then apply PERM with the new company...at the time of applying 140 with comp B use the old 140 approval from comp A and make sure you put a colorful page saying you are claiming older priority date in the application of 140. This idea was given by Murthy. When 140 is approved with comp B you will get the priority date of comp A labor.

Read the memo from rajiv as attached.

Thanks for posting this. It seems not many people are aware of this rule, at least I did not knew about it. It will be of great relief for the people who are affected by the retrogression. I will request people to submit more details on this topic like :-
1. Should new job be in same category and should job description also be same.
2. What about salary ?
3. In cpmpany when can you apply for the H1B extension? Should your labor application process have been started more than 365 days before VISA expires for getting extension in company B or more than 365 days rule does not apply here as you already have approved I-140 from company A.
4. What are the caveats ?

[jnpr]

Originally Posted by rest_2004_free

Valid scenario...

Working in Comp A, applied labor before 6th year starts, ie labor has been pending for more than 365 days when 7th year of H1 needs to be renewed. Applied 140 while working with comp A, got it approved. You have the copy of 140 notice that says the application has been approved.

After 140 was approved, you can change your jobs to Comp B if you want to preserve the PD. It does not matter whether the employer of Comp A revokes the 140, all you need is a copy of the 140 approval notice. Make sure INS does not revoke that 140 by itself saying it was applied in fraud etc -- remote chances anyway.

Now that you are in comp B, you can keep extending your H1 with them. Whether you will get 3 year increments or 1 year increments with the comp B I am not sure. Maybe it is better to stick with comp A and get 3 year increment of H1, transfer the H1 then apply PERM with the new company...at the time of applying 140 with comp B use the old 140 approval from comp A and make sure you put a colorful page saying you are claiming older priority date in the application of 140. This idea was given by Murthy. When 140 is approved with comp B you will get the priority date of comp A labor.

Read the memo from rajiv as attached.

Thank you for posting this. I was not aware of this either.
I thought I have to submit my new labor 365 days before my 6 year H1 expiratioin date.
I want to make 120% sure that after my first 140 cleared but not eligible to file 485, I can file my new labor after 6 years of H1. In other words, I would like to have more references before I move to a new job.

Thanks again!
__________________

[lethal]

Guys,
Below is the information I received from one of the lawyers in Dallas Area.

I asked question to one of the lawyer about keeping the old priority date as well as moving from Company A to Company B and his answers were as below:

1) You cannot change your job from Company A to Company B during the extension period, meaning after 6th year on H1 even if you have extension period of 1 year (if your labor is applied for more than a year before 6th year) or 3 years (if your I-140 is approved). He stated that the extension on H1 is for Company A and you cannot move to Company B if only I 140 is approved and if you have not applied for I485. The only rule to move from Company A to Company B during extension period on H1 is only if your 485 applied.

2) Yes it is possible to keep your old priority date if your I140 is approved with Company A and if you wish to move to Company B. He stated that this is only if you move from Company A to Company B before 5th year on your H1B.

So the only way to move from Company A to Company B during the extension period will be if Company B has already applied for your labor before the completion of your 365 days of completion of 6th year on H1.

I did read Rajiv Khanna's posting but it does not clear the point. He mentions that yes it is possible to keep the OLD PRIORITY DATE but he does not mention about change from Company A to Company B during the extension on H1.


I will like someone to reconfirm this from another lawyer.

[newbies]

Originally Posted by lethal

Guys,
Below is the information I received from one of the lawyers in Dallas Area.

I asked question to one of the lawyer about keeping the old priority date as well as moving from Company A to Company B and his answers were as below:

1) You cannot change your job from Company A to Company B during the extension period, meaning after 6th year on H1 even if you have extension period of 1 year (if your labor is applied for more than a year before 6th year) or 3 years (if your I-140 is approved). He stated that the extension on H1 is for Company A and you cannot move to Company B if only I 140 is approved and if you have not applied for I485. The only rule to move from Company A to Company B during extension period on H1 is only if your 485 applied.

2) Yes it is possible to keep your old priority date if your I140 is approved with Company A and if you wish to move to Company B. He stated that this is only if you move from Company A to Company B before 5th year on your H1B.

So the only way to move from Company A to Company B during the extension period will be if Company B has already applied for your labor before the completion of your 365 days of completion of 6th year on H1.

I did read Rajiv Khanna's posting but it does not clear the point. He mentions that yes it is possible to keep the OLD PRIORITY DATE but he does not mention about change from Company A to Company B during the extension on H1.


I will like someone to reconfirm this from another lawyer.

Both the previous company lawyer and my current company lawyer said you can transfer and keep the priority date anytime.
They also state if you have labor submit 365 days before the completion of 6th year of H1B on ANY COMPANY. You can continue get extension with any Company. The only thing you need is the copy of the letter that DOL received your labor application (if not, the date that your labor is received and your lawyer will need to get the screenshot).
Note: my previous company is a big high tech (over 3,000 H1B working people) and the current is middle size having around 100+ H1B. So, I guess their lawyer must be very good at H1B stuffs

[san12]

Thanks newbies!

Your post is a big relief for me. My labor was applied 2 years back in Company A and I switched to company B last year. I was told by someone that I can get extension on the basis of that labor application. Company A is not co-operating and not telling me anything about extension and is not responding to my phone calls and e-mails. Is it possible that approved labor has been transferred to somebody else? Is this possible to do this? In that case, what will I have to do? I 'm completing six years in less than one year's time.
Please respond as this is very urgent for me.

[san12]

I'll appreciate your reply.

[jnpr]

Originally Posted by san12

Thanks newbies!

Your post is a big relief for me. My labor was applied 2 years back in Company A and I switched to company B last year. I was told by someone that I can get extension on the basis of that labor application. Company A is not co-operating and not telling me anything about extension and is not responding to my phone calls and e-mails. Is it possible that approved labor has been transferred to somebody else? Is this possible to do this? In that case, what will I have to do? I 'm completing six years in less than one year's time.
Please respond as this is very urgent for me.

As far as I know, you need to confirm your previous labor has never been used by other people after you left your previous employer.

[jnpr]

Originally Posted by lethal

Guys,
Below is the information I received from one of the lawyers in Dallas Area.

I asked question to one of the lawyer about keeping the old priority date as well as moving from Company A to Company B and his answers were as below:

1) You cannot change your job from Company A to Company B during the extension period, meaning after 6th year on H1 even if you have extension period of 1 year (if your labor is applied for more than a year before 6th year) or 3 years (if your I-140 is approved). He stated that the extension on H1 is for Company A and you cannot move to Company B if only I 140 is approved and if you have not applied for I485. The only rule to move from Company A to Company B during extension period on H1 is only if your 485 applied.

2) Yes it is possible to keep your old priority date if your I140 is approved with Company A and if you wish to move to Company B. He stated that this is only if you move from Company A to Company B before 5th year on your H1B.

So the only way to move from Company A to Company B during the extension period will be if Company B has already applied for your labor before the completion of your 365 days of completion of 6th year on H1.

I did read Rajiv Khanna's posting but it does not clear the point. He mentions that yes it is possible to keep the OLD PRIORITY DATE but he does not mention about change from Company A to Company B during the extension on H1.


I will like someone to reconfirm this from another lawyer.

From all the articles/memos I have read, especially carefully read Yates May12,2005 memo again, I conclude your lawyer is wrong. I'm not a lawyer but I believe you can change GC sponsor employer on >=7th year and apply new H1B through new employer on the basis that your previous labor application pending 365 days. To be more accurate, it doesn't have to be pending 365 days. As long as you started the labor process for 365 days, it could be approved and you haven't filed your 140/485 yet, or your 140/485 is still pending.
However, your previous labor certificate should never be used by another person. If labor substitue is eliminated in a few months, we would not have this issue any more.

Please follow up with your lawyer. If your lawyer wants to charge you by time for discussing this issue, you should fire your lawyer.

[naudurivsm]

I agree on this, I have applied for 7th year extension through New Employer (c)
based on old pending LC of my previous employer (A), Please note that I was working for employer B before applying /joining C

and my lawyer says it is valid and we will get extension. I had provided the proof of LC pending at BEC ( that is screen shot of the BEC system ) which shows the LC details. that should be enough to get 7th year extension.

[akela]

When I had asked my company lawyer, he said that you can get 7th year extension if you change your company (mine had not yet reached the 6th year) and the previous LC (ofcourse it was more than a year old) was not yet withdrawn or substituted.

Now I have a question of my own, if you file I-140 (which the only thing you can file now due to retrogression) after you get your LC, does that make India travel problematic. Like if you go for 7th year extension at a consulate and you have filed I-140, will it create problems!!

rgds,
a

[naudurivsm]

Theoritically NO, and consulates in India ( particulary Chennai), can't say, otherwise you should be ok, keep all relevant documentation and Income tax records , letters from current employers etc. and I see no problems.
That is what my lawyer says;
One thing we have to ensure in previous employers DO bot revoke or substitute it for some one else.

fortunately I have very good relations with all my previous employers and so in a good shape as far as that issue is concerned.

[jnpr]

Originally Posted by akela

When I had asked my company lawyer, he said that you can get 7th year extension if you change your company (mine had not yet reached the 6th year) and the previous LC (ofcourse it was more than a year old) was not yet withdrawn or substituted.

Now I have a question of my own, if you file I-140 (which the only thing you can file now due to retrogression) after you get your LC, does that make India travel problematic. Like if you go for 7th year extension at a consulate and you have filed I-140, will it create problems!!

rgds,
a

not at all. 140 is your employer's property not yours. You are only the beneficiary. You have never applied for immigration yet before 485.

[akela]

well arent you supposed to answer this question, have you or someone on your behalf filed for immigration on the visa form, what do you answer if you have filed I-140

rgds,
a

[jnpr]

Originally Posted by naudurivsm

Theoritically NO, and consulates in India ( particulary Chennai), can't say, otherwise you should be ok, keep all relevant documentation and Income tax records , letters from current employers etc. and I see no problems.
That is what my lawyer says;
One thing we have to ensure in previous employers DO bot revoke or substitute it for some one else.

fortunately I have very good relations with all my previous employers and so in a good shape as far as that issue is concerned.

It’s a relief to see more and more confirmation here.

I have a very important question here:
If my labor through company A is pending 365 days---including labor approved and started at least 365 ago, may I just extend H1B through new employer company B, company C... indefinitely, for the rest of my life?

Please notice that once labor substitute is eliminated, there will be no issue regarding other beneficiary of your labor certificate.

This question is very meaningful to me. My 485 is not filed yet and AC21 employment portability is so far away from me now. In case I have to leave my current employer and can NOT find a green card sponsor employer, can I just go ahead and work for the non-GC-sponsor employer first and then look for another employer which sponsors green card?
Thanks for your comments.

[jnpr]

Originally Posted by akela

well arent you supposed to answer this question, have you or someone on your behalf filed for immigration on the visa form, what do you answer if you have filed I-140

rgds,
a

the answer is no

[san12]

Thanks so much for the reply. I am trying to contact my previous employer and the lawyer for information but they are not replying to my e-mails and phone calls. Once my labor was approved in my previous company, I-140 was also filed. Is it possible to substitute labor after I-140 is filed.

[jnpr]

Originally Posted by san12

Thanks so much for the reply. I am trying to contact my previous employer and the lawyer for information but they are not replying to my e-mails and phone calls. Once my labor was approved in my previous company, I-140 was also filed. Is it possible to substitute labor after I-140 is filed.

Yes it's possible.
Hopefully the sub labor will be emiminate by the end of this year.
I think you should file H1B extension right away. I believe the H1B adjudicator will be convinced by your labor certificate receipt from your state labor dept or BEC screenshot of H1B 7th year proof.
If you move fast, it’s less likely for you to have trouble with H1B extension.

[GCPD0102]

Originally Posted by san12

Thanks so much for the reply. I am trying to contact my previous employer and the lawyer for information but they are not replying to my e-mails and phone calls. Once my labor was approved in my previous company, I-140 was also filed. Is it possible to substitute labor after I-140 is filed.

Yes. It is possible for the employer to withdraw the 140 and substitute the LC for another employee BEFORE the 1st 140 gets approved. But, once your 140 is approved you keep the priority date even if the employer withdraws the 140. (Only thing is you must keep a copy of the 140 approval document).

[akela]

San,

I guess you are missing two things...
Two things can happen to your previous LC
1. It can be substituted (hopefully wont happen after few months but you never know)
2.Withdrawn by the company (can happen any time, and my company did say after some times (say 3-6 months) they do withdraw the LC).

If any of this happen then I believe (and consult a lawyer) you cannot extend your h1. If none of the above is happening, then you are good to go. Please consult a lawyer and take a considerate decision. Know all the facts

rgds
a

[naudurivsm]

Originally Posted by jnpr

It’s a relief to see more and more confirmation here.

I have a very important question here:
If my labor through company A is pending 365 days---including labor approved and started at least 365 ago, may I just extend H1B through new employer company B, company C... indefinitely, for the rest of my life?

Please notice that once labor substitute is eliminated, there will be no issue regarding other beneficiary of your labor certificate.

This question is very meaningful to me. My 485 is not filed yet and AC21 employment portability is so far away from me now. In case I have to leave my current employer and can NOT find a green card sponsor employer, can I just go ahead and work for the non-GC-sponsor employer first and then look for another employer which sponsors green card?
Thanks for your comments.

Good question !!

The H1 extensions based on either a pending or approved LC are given only in 1 year increments. So....

In the scenario you are suggesting, it is possible as long as it is NOT reoked by the original LC finling employer. All depends on your relations with that employer.

Since the question of whether the Job / requirement is available etc does not arise at this point of time.

"Jab miya-bibi raji tho kya karega kazi " and we have the law as such, no restrictions on getting h1 extensions

[san12]

Thanks a lot! I'm trying to find some lawyer. Can I apply labor through PERM? Is it possible to get extension on the basis of approved labor through PERM which will not be 365 days old

[jnpr]

Originally Posted by san12

Thanks a lot! I'm trying to find some lawyer. Can I apply labor through PERM? Is it possible to get extension on the basis of approved labor through PERM which will not be 365 days old

no you can't get extension based on your new PERM labor which will not be 365 days old on the H1B expiration date.

However, if you file H1B extension based on your old labor right away you will get H1B approved before your old labor is revoked or substituted.
If your new PERM is 365 days old on your new H1B expiration date, then you can extend your next H1B based on your new PERM 365 days.

[san12]

Do you have any idea when labor substitution will go? Is there any notification regarding this? The reason I am asking this is that I want to change job now before I get into the extension period and if my labor is substituted or withdrawn, I should be able to get someone's approved labor in the new company if available before labor sub goes.

[san12]

My wife just confirmed from her employer who said that seventh year extension can be obtained if the labor is approved ( and ofcourse not revoked/withdrawn/substituted) no matter how many days prior to H1 expiration date it was filed. The question of 365 days comes in picture only when labor is pending. Extension is granted on the basis of LC and if the labor is approved, extension is granted whether labor was filed 5 months or 5 years ago. So, if labor is approved under PERM, 7th year extension is possible. I'll confirm from one more place. Hope this brings relief for those who are in the same situation like me.

[naudurivsm]

Yes it is true,
H1 extensions can be obtained from Approved LC regardless of dates or days of approval.
The "365 days" clause is only comes into picture when the labor is pending approval.