H1B Portability after 6 years

[just_me]

Need your advice people! So here's my tricky situation:

Both me and my wife have been with the same employer A since 2000.

Her LC and I-140 are approved since 2005. She has H-1B extended upto 9 years through 2009 (based on I-140 approval).

My LC and I-140 were approved in June 2007. My H-1B is approved for 7th year through this year, and will be filing for 3-year extension based on I-140. We also filed I-485, EAD and AP in June with me as primary and her as dependent applicant (waiting for receipts).

My wife wants/needs to switch jobs ASAP as current employer is not working out any more for her. Here are the options as I see it, and my questions:

1. If she can find a new employer that will sponsor her H1B, she can do a straight transfer to employer B. Is this fine, given that her current extensions are based on I-140 approval with A, and she is not really doing anything with that application any more?

2. If the new job comes after some time-lapse from current job ending, does she need to inform USCIS of any status change (e.g. H4)? Or will she be legal anyways due to pending-I485-status-on-my-application? (a) And once she does get the job, can she go to H1B now using transfer, or is this not possible due to time-lapse? (b) I am assuming she cannot do a new H1B (non-transfer), as she will now be subject to new (expired) quota, and wud anyways have to leave the country before she can get new H1B. Is this accurate?

3. She can wait for the EAD to come through in Sept/Oct. Then does she need to file H4 after she leaves employer A?

Any other options?!

Thanks for your help!!

 

[vectorP]

transfer to employer B

1) If she wants to transfer to employer B, it depends on when she filed her I-485 application. According to the AC-21 rule, she can transfer to another employer only if her I-140 has been approved AND her I-485 application has been pending for more than 180 days. Otherwise, her I-485 may not get approved after changing her job.

2) For her, it is not a new H1B, it should be a transfer of H1B because of the job change, and these is no H1B quota for the H1B transfer case. Any status change must go through the USCIS approval process, like H4 application. If she changes her status or job before 180 days of I-485 pending, she may lose the I-485 case, because the I-140 and I-485 case is employer sponsored.

3) EAD is the work permit, not the immigration visa status. If she leaves employer A, she must keep another visa status, such as another H1B, or H4, or F1.

please also see:
http://www.greencardapply.com/question/question06/question06_0718.htm
http://www.greencardapply.com/question/question05/question05_0729.htm


VectorP
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