Off topic - Changing employer after I-140 is approved but 485 is not filed

atyagi73

Registered Users (C)
#1
Gurus,

Please bear with me and excuse me asking a very specific question. Can I change my employer and keep same PD if my I-140 is approved and 485 is not filed yet. I have used 6 years of my H1 and my current application is filed in EB3. My potential employer is a big(fortune 10) company and may be ready to file my labor in EB2 category(on the basis of experience).

How risky does this proposal sound ? Any help/information is appreciated.
 

titu1972

Registered Users (C)
#2
I'm having same problem

I have approved I-140 in EB2 category. My PD is July 2005. I have already applied for my 7th yr extension. I'm wondering whether Can I join my client, bcos they are intrested on me probably my employer may not have probem on this regard.
 

BrainDrain

Registered Users (C)
#3
I am in a similar position. Actually I asked my company lawyer himself whether if I were to change jobs would I retain the PD for any subsequent GC process. He said yes as my I-140 has been approved.

We may have to start the process again but the PD is ours as far as I believe.


I have also done research on Rajiv Khanna's website and the following is from here:

CHANGING EMPLOYER AFTER I-140 APPROVAL


If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.

If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.

We recommend that an applicant keep at least a copy of the I-140 approval notice.





atyagi73 said:
Gurus,

Please bear with me and excuse me asking a very specific question. Can I change my employer and keep same PD if my I-140 is approved and 485 is not filed yet. I have used 6 years of my H1 and my current application is filed in EB3. My potential employer is a big(fortune 10) company and may be ready to file my labor in EB2 category(on the basis of experience).

How risky does this proposal sound ? Any help/information is appreciated.
 

nj_skm

Registered Users (C)
#4
Yes, the PD is yours to keep.
However, you'll have to go thru the LC and 140 again thru the new employer and when you're filing for the I-485 with the new employer then you can use the old PD.
Since the LC and 140 won't take more than 6-8 months on an average, if you expect not to be able to file for your 485 till then (due to your PD not being available) then yes, you should be able to to change employers.
However, I'm not sure how the H1 transfer would work if you've already used up 6 yrs. Is it treated as a simple H1B transfer? With the new employer, how long will the new H1 be granted for?
 

desi3933

Registered Users (C)
#5
nj_skm said:
Yes, the PD is yours to keep.
However, you'll have to go thru the LC and 140 again thru the new employer and when you're filing for the I-485 with the new employer then you can use the old PD.
Since the LC and 140 won't take more than 6-8 months on an average, if you expect not to be able to file for your 485 till then (due to your PD not being available) then yes, you should be able to to change employers.

However, I'm not sure how the H1 transfer would work if you've already used up 6 yrs. Is it treated as a simple H1B transfer? With the new employer, how long will the new H1 be granted for?

He can get 3 years H1 extension (even after 6 years) as his I-140 ia approved. It does NOT matter is approved I-140 is for different employer.
Disclaimer: I'm not a lawyer, and this ain't legal advice, its just my opinion.
-----------------------------------------
PD: Jan 2000
LC: Mar 2000
I-140 EB3: Jun 2000
I-140 EB2: Oct 2000
I-485: Jul 2000
I-485 AD: May 2002
 

pkpkpkpk

Registered Users (C)
#6
Watch out: old employer could revoke 140 or substitute your labor...

I was trying this very same thing and would like to share my experience with you folks.

First, the H1 transfer is only valid till the original period of H1 extension. For example, If you had got a 7th year extension, then you may transfer the H1 but only for the same period as in the original H1. If you need an extension the next year, then you better have the new 140 approved, since the old 140 may be revoked and you have no legal basis.
In my case however, I have a 3 year extension and I have more than 2 years left.

Secondly, with labor substitution still possible, your employer (especially if he is a desi consultant) will try to sell the labor and approved 140, so IMHO, wait till the USCIS bans labor substitution.They were talking about it but I did not see any news about it being banned.

Thirdly, even if yor old employer does not substitute labors, they may cancel the I140 out of principle or simply to spite you and teach others a lesson. I spoke to an attorney in this regard and she said that when a company revokes the 140, then all documents tied to that need to be revoked and she estimated costs of 2-3k and the process may take 2-3 months. Another factor to consider.

The best solution in this scenario IMO is to join the new employer as a contractor, convince him to file PERM and then 140. The priority date is present only on the 140 and the older date can be requested at this time. On approval of the I140, you can without risks switch to the new employer.

I failed to convince the new employer in this regard since these big companies have set policies; they will file PERM only after I become an employee. So, things went in a circle and here I am, wallowing in the mud hoping for movement in priority dates.
 

nj_skm

Registered Users (C)
#7
That's interesting.
Too bad that most of these big companies have inflexible policies written in stone.
Did you try to move your application to another consulting company who might give you a better deal like 80-20 or better so that you can at least get to keep a good percentage of what you make?
 

nyc8300

Registered Users (C)
#8
Couple of Questions
Can an employer sell both LC and I-140 together i.e. once the I-140 is approved for a person is the LC usable for another person at all?

Is the employer legally liable if he does not revoke I-140 when an employee leaves? The 2K-3K cost for revoking I-140, who bears that?

Thanks


pkpkpkpk said:
I was trying this very same thing and would like to share my experience with you folks.

First, the H1 transfer is only valid till the original period of H1 extension. For example, If you had got a 7th year extension, then you may transfer the H1 but only for the same period as in the original H1. If you need an extension the next year, then you better have the new 140 approved, since the old 140 may be revoked and you have no legal basis.
In my case however, I have a 3 year extension and I have more than 2 years left.

Secondly, with labor substitution still possible, your employer (especially if he is a desi consultant) will try to sell the labor and approved 140, so IMHO, wait till the USCIS bans labor substitution.They were talking about it but I did not see any news about it being banned.

Thirdly, even if yor old employer does not substitute labors, they may cancel the I140 out of principle or simply to spite you and teach others a lesson. I spoke to an attorney in this regard and she said that when a company revokes the 140, then all documents tied to that need to be revoked and she estimated costs of 2-3k and the process may take 2-3 months. Another factor to consider.

The best solution in this scenario IMO is to join the new employer as a contractor, convince him to file PERM and then 140. The priority date is present only on the 140 and the older date can be requested at this time. On approval of the I140, you can without risks switch to the new employer.

I failed to convince the new employer in this regard since these big companies have set policies; they will file PERM only after I become an employee. So, things went in a circle and here I am, wallowing in the mud hoping for movement in priority dates.
 

pkpkpkpk

Registered Users (C)
#9
So close, yet so far away

My priority date is EB3 India Aug 2001.

If I switch to another consultant, I will have to do all the stuff again and also pay for it. So, I am waiting to see how the dates move...
 

pkpkpkpk

Registered Users (C)
#10
nyc8300 said:
Couple of Questions
Can an employer sell both LC and I-140 together i.e. once the I-140 is approved for a person is the LC usable for another person at all?

Is the employer legally liable if he does not revoke I-140 when an employee leaves? The 2K-3K cost for revoking I-140, who bears that?

Thanks
Be wary of the word "sell" -- that in itself may be illegal.
I am not fully sure of the answer to the first question, but I was told that even if the I140 is approved for person A, the company can file a new I140 for person B using the same labor. The case becomes yours totally when BOTH 140 is approved and 180 days have passed since the filing of the 485.

The employer is not legally liable to revoke the I140. This is for a future petition. However, if you leave the company, the company is legally liable to cancel the H1b. Not many companies do that since they have to pay lawyers fees. The big companies however do that.
The cost of cancelling will of course be borne by the company you are leaving, why would the employee pay that?
 

djb

Registered Users (C)
#11
pkpkpkpk said:
I was trying this very same thing and would like to share my experience with you folks.

First, the H1 transfer is only valid till the original period of H1 extension. For example, If you had got a 7th year extension, then you may transfer the H1 but only for the same period as in the original H1. If you need an extension the next year, then you better have the new 140 approved, since the old 140 may be revoked and you have no legal basis.
In my case however, I have a 3 year extension and I have more than 2 years left.

Secondly, with labor substitution still possible, your employer (especially if he is a desi consultant) will try to sell the labor and approved 140, so IMHO, wait till the USCIS bans labor substitution.They were talking about it but I did not see any news about it being banned.

Thirdly, even if yor old employer does not substitute labors, they may cancel the I140 out of principle or simply to spite you and teach others a lesson. I spoke to an attorney in this regard and she said that when a company revokes the 140, then all documents tied to that need to be revoked and she estimated costs of 2-3k and the process may take 2-3 months. Another factor to consider.

The best solution in this scenario IMO is to join the new employer as a contractor, convince him to file PERM and then 140. The priority date is present only on the 140 and the older date can be requested at this time. On approval of the I140, you can without risks switch to the new employer.

I failed to convince the new employer in this regard since these big companies have set policies; they will file PERM only after I become an employee. So, things went in a circle and here I am, wallowing in the mud hoping for movement in priority dates.
You mentioned that you have 2 more years left on your H1. Why didnt you switch employer? You would have got your labor and I-140 with your new employer within 6 months and thus become eligible for another 3 years...Am I missing something? Please let me know as I am in the same boat and waiting to make the decision.
 

pkpkpkpk

Registered Users (C)
#12
djb said:
You mentioned that you have 2 more years left on your H1. Why didnt you switch employer? You would have got your labor and I-140 with your new employer within 6 months and thus become eligible for another 3 years...Am I missing something? Please let me know as I am in the same boat and waiting to make the decision.
Well, the answer to this question is in my earlier post!!
The new employer will file PERM only when I join and I cant join without new I140 and PERM!!
 

manum67

Registered Users (C)
#13
I am having a somewhat unique situation:

- 140 approved:NIW (July'05) ; 485 filed and pending (NIW was under network security)
- 6hrs H1 exhaust in Jan'07
- In possesion of EAD and AP papers (Have used AP papers for travelling but have not used EAD)

I have asked my company to extend my H1 for 3 yrs (Jan07-Jan10) since my 140 has been approved.

Issue:
======
I am planning to move into Investment Banking next year. Can I switch job roles on my my 3yr extended H1, and then restart the whole GC process with the new firm?

Any help will be immensely appreciated
-Wiseguy
 

garam.chadi

Registered Users (C)
#14
manum67 said:
Can I switch job roles on my my 3yr extended H1, and then restart the whole GC process with the new firm?
-Wiseguy

Ur H1b extension is based off the pending 485 approval. If you kill Ur 485 ... H1b becomes meaningless..

Wonder why U want to extend Ur h1b when U have had got an EAD ?
 

djb

Registered Users (C)
#15
manum67 said:
I am having a somewhat unique situation:

- 140 approved:NIW (July'05) ; 485 filed and pending (NIW was under network security)
- 6hrs H1 exhaust in Jan'07
- In possesion of EAD and AP papers (Have used AP papers for travelling but have not used EAD)

I have asked my company to extend my H1 for 3 yrs (Jan07-Jan10) since my 140 has been approved.

Issue:
======
I am planning to move into Investment Banking next year. Can I switch job roles on my my 3yr extended H1, and then restart the whole GC process with the new firm?

Any help will be immensely appreciated
-Wiseguy
From what I know, you can apply for 3 yr extension if your I-140 is approved and you cant file I-485 due to retrogression. Since you have already filed I-485 and its been 6 months since then, you can work on your EAD - dont need any H1 extension.
 

djb

Registered Users (C)
#16
pkpkpkpk said:
Well, the answer to this question is in my earlier post!!
The new employer will file PERM only when I join and I cant join without new I140 and PERM!!
Why cant you join without new I140 and PERM? You said you got your H1 extended by 3 years and you have 2 years left from there...If you switch to a new employer now, cant you do the following?

1. Get the H1 transferred to the new employer and join the new employer.

2. Initiate a new PERM and I140 there? Hopefully, all that will be complete within 6-8 months (you have 2 years to take care of all that - so, you have sufficient buffer) and that will make you eligible for further extensions.

Please let me know if I misinterpreted something...
 

pkpkpkpk

Registered Users (C)
#17
djb said:
From what I know, you can apply for 3 yr extension if your I-140 is approved and you cant file I-485 due to retrogression. Since you have already filed I-485 and its been 6 months since then, you can work on your EAD - dont need any H1 extension.
Doesn't the EAD come with some kind of strings attached? Should we still work in the same kind of job?
 

djb

Registered Users (C)
#18
unitednations said:
This is what people do:

I-140 approved; no 485 filing. Close to six years or in seventh, eighth year.

Use the I-140 approval as a basis for transferring and switching to new company. USCIS will give three years on h-1 when you transfer to other company................ Once you have approved I-94 card with new company then the only way it isn't good anymore is if old company revokes I-140; Immigration judge revokes I-94 card OR in the adjuciation of future benefits; USCIS finds out that the basis of the I-94 approval no longer exists (this will happen if you try to transfer/extend again and you don't have another I-140 approval or labor older then 365 days).
...............
"..Once you have approved I-94 card with new company then the only way it isn't good anymore is if old company revokes I-140;...." - Can you please point me to the place where you got this information from? I am curious to find out the source since I was not aware of this.

My understand is that once you get a 3 year H1 extension based on the approved I-140, it is as good as the regular H1, with no strings attached. Based on what you are saying, it is conditional ..If that is the case, I need to know that asap.
 

djb

Registered Users (C)
#19
unitednations said:
I didn't write that part of the sentence properly. Once 140 is approved and then you transfer the h-1 and you get I-94 card then you are safe, even if old company revokes the I-140.

However, once an I-94 card has been approved; then the only way it can be "revoked" is for USCIS to formally revoke it in the course of adjudicating another benefit (it has to come to their attention) or an immigration judge does it.

USCIS doesn't have the mechanism to routinely look back at H-1b approvals after the fact. It only comes to their attention when you try to transfer/extend again. At that point you should have another basis to extend (ie., another labor or approved I-140).
..... [/COLOR]

UnitedNations, Thanks for the detailed answer...I have a specific question about H1B status only, and NOT priority date portability.

1> If I received my 3 yr extension already from my old employer (first 6 years complete) due to an approved I-140, can I simply do a H1 transfer to a new employer?

2> Same scenario as Qn 1 (3 year extension received from old employer after I-140 approval). From what you said above, I CANT do a H1 transfer from a new employer to another new employer without a pending labor/I-140 (or approved I-140) from the first new employer. Is this correct?
 

desi3933

Registered Users (C)
#20
djb said:
UnitedNations, Thanks for the detailed answer...I have a specific question about H1B status only, and NOT priority date portability.

1> If I received my 3 yr extension already from my old employer (first 6 years complete) due to an approved I-140, can I simply do a H1 transfer to a new employer??
Yes, As long as approved I-140 is not revoked by the previous Employer or CIS.

djb said:
2> Same scenario as Qn 1 (3 year extension received from old employer after I-140 approval). From what you said above, I CANT do a H1 transfer from a new employer to another new employer without a pending labor/I-140 (or approved I-140) from the first new employer. Is this correct??
You CAN do H1B transfer. You would need another I-140 approved (or LC pending > 365 days) from another sponsor (any employer - current or future), ONLY if your approved I-140 from previous employer is revoked.
 
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