7th yr H1B, Got Labor Cert; Can change company with H1B?

S

sky88

Registered Users (C)
Dear all..

I am in my 7th yr of my H1B, recently gotten my labor cert and filling I140. I recently asked my lawyer ...say IF I get a job offer from another company (similar job title or same scope of work), I can still take the new job with the new company and continue to extent my H1B annually provided the new company starts my labor filling (PERM) ASAP. She said I could do that bcos of American Competitiveness in the 21 st Century Act of 2000 (AC21).

When I heard that..i was like WHAT??? :eek: All this while I thought i am stucked with my current company bcos my current H1B extension was based on the fact that my labor cert (filed by current company) had been pending for more than 1 yr...and I can only continue the extension by my current company!!!!

I checked the AC21 that says, a H1B can be extended beyond 6 yrs if :

a) Applicant's labor for Employment based green card purpose is pending for more then 365 days.

b)Applicant's petition for I-140 is approved under employment based green card and AOS/485 is pending due to Visa numbers unavailability.

But my QUESTION is, in my case, my labor has been certified (approved), so it's no longer pending; and I am about to file my I140, so can the new company continue to extend my H1B while they file a new labor cert and GC for me...if they decided to hire me? Do I really have that freedom to leave the current company while maintaing my extended H1B??? How AC21 applies in this situation?

Please help educate me....

Thanks in advance

Sky
 
sky7 said:
But my QUESTION is, in my case, my labor has been certified (approved), so it's no longer pending; and I am about to file my I140, so can the new company continue to extend my H1B while they file a new labor cert and GC for me...if they decided to hire me? Do I really have that freedom to leave the current company while maintaing my extended H1B??? How AC21 applies in this situation?

Please help educate me....

Thanks in advance

Sky
Click to expand...
Replace "pending" with "pending or approved".
 
So let me double confirm....the AC21 also included me, who has an certified labor cert (which took 3++ yrs)...? and I have the option to quit my current job and work for another company....then start a new GC process?

THANKSSSS!!!!
 
sky7 said:
So let me double confirm....the AC21 also included me, who has an certified labor cert (which took 3++ yrs)...? and I have the option to quit my current job and work for another company....then start a new GC process?

THANKSSSS!!!!
Click to expand...

Ok as far as I know, here is a potential trap of changing companies after just having labor approved. The labor has still not be 'used', so while you may get an extension right now, if the current employer uses the labor for substitution you can no longer use any of the benefits (including futher extention and priority date retention).

This can be solved by waiting for 140 to be approved after which the labor is "consumed" and can't potentially be reused (not 100% sure), but the best part is that after 140, you retain the priority date!. You can then use the 140 for further extention (but hopefully you should apply for a new PERM/140 with your new employer).
 
Sc3,
No offence to anyone, hypothetical situation.....
Do you think even if sky7's current company withdraws labor/140 - he can
still take his original priority date to next company?

- Kev.
 
GotPR? said:
PD can be kept only if I140 was approved and LC/I140 were not withdrawn.
Click to expand...

Got PR?

I have a little confusion about the situation where I-140 get's withdrawn. I had an idea, once I-140 gets approved, PD sticks to beneficiary unless there is some fraud involved. That means even if employer revokes I-140 employee keeps PD. Am I thinking wrong?

Thanks,
 
dsugandhi said:
Got PR?

I have a little confusion about the situation where I-140 get's withdrawn. I had an idea, once I-140 gets approved, PD sticks to beneficiary unless there is some fraud involved. That means even if employer revokes I-140 employee keeps PD. Am I thinking wrong?

Thanks,
Click to expand...

I had the same thoughts as GotPR that employer withdrawing 140 kills this deal, but someone (in 140/485 forums) corrected me. Once 140 is approved, the labor is said to be consumed and the Priority date becomes the "property" of the labor/140 beneficiary. Dsugandhi you are correct, only case is if there is fraud involved.

Sorry I dont have the link.
 
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