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

Sc3

Registered Users (C)
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
 
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Yes it is possible but....you also need to know this..

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.

Sc3 said:
Bump!, Somebody please advise if this is possible.

Thanks in advance,
Sc3
 
Please advise

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?
 
rest_2004_free said:
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 ?
 
rest_2004_free said:
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!
__________________
 
changing jobs during extension period on H1.

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.
 
lethal said:
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 :)
 
I-140 not approved, changed job and now need extension

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.
 
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san12 said:
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.
 
lethal said:
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.
 
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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.
 
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
 
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.
 
akela said:
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.
 
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
 
naudurivsm said:
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.
 
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akela said:
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
 
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