PD/H1 extention and change employer questions

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xiaopang

Registered Users (C)
I have 13 months left on my 6-year H1b. EB2 LC is approved. PD is August 2006. Haven't filed 140 yet.

Now I have an offer from another company, which I really like, better hours, higher pay, nicer group of people.

Thanks to the previous discussions on this board, the following is my conclusion. Please let me know if I missed anything:

1. The first option is file 140 right away to get a 3-yr extension. Then go to the new company to apply for LC and 140, but I can keep the 2006 PD, as long as the old company doesn't withdraw my LC/140 (this is a question because my boss is an asshole). If they do, the PD is gone although the 3-yr extension should be safe. So looks like I should get the 140 filed regardless.

2. OPtion two: Just give up the LC from the current company and have the new company do the whole process afresh altogether. However, 13 months may not be enough because it taks more than 2 months to prepare the LC filing, and I may not be eligible for additional H1b extensions (because you have to be filed at least 365 days prior to the expiration of the H1). One way to deal w/ it is try to recapture the days I spent out of the US during my 6 year term (which is like another 2 months). SO it may work but time is very tight. The new employer's immigration lawyer has to be super fast. Now if my current employer files 140, then I'd have enough time on the H1 to redo the process at the new company.

Does this sound right? Are there any better solutions?
 
xiaopang said:
I have 13 months left on my 6-year H1b. EB2 LC is approved. PD is August 2006. Haven't filed 140 yet.

Now I have an offer from another company, which I really like, better hours, higher pay, nicer group of people.

Thanks to the previous discussions on this board, the following is my conclusion. Please let me know if I missed anything:

1. The first option is file 140 right away to get a 3-yr extension. Then go to the new company to apply for LC and 140, but I can keep the 2006 PD, as long as the old company doesn't withdraw my LC/140 (this is a question because my boss is an asshole).

Maybe you should consider using better words. What do you expect your Company to do when you are the one leaving the job.

If they do, the PD is gone although the 3-yr extension should be safe. So looks like I should get the 140 filed regardless.

3-Year extension is available only after I-140 is approved.

2. OPtion two: Just give up the LC from the current company and have the new company do the whole process afresh altogether. However, 13 months may not be enough because it takes more than 2 months to prepare the LC filing, and I may not be eligible for additional H1b extensions (because you have to be filed at least 365 days prior to the expiration of the H1). One way to deal w/ it is try to recapture the days I spent out of the US during my 6 year term (which is like another 2 months). SO it may work but time is very tight. The new employer's immigration lawyer has to be super fast. Now if my current employer files 140, then I'd have enough time on the H1 to redo the process at the new company.

Does this sound right? Are there any better solutions?

You can apply of H1 Change for 15 months (13 months + 2 months for breaks outside US) and can be renewed for 1 year based on LC from Company A. Meantime Company B can file for LC and I-140. After I-140 is approved H1 can be renewed for 3 years.
Click to expand...

Please check details with your attorney/lawyer.
 
Thanks.

1. The first option is file 140 right away to get a 3-yr extension. Then go to the new company to apply for LC and 140, but I can keep the 2006 PD, as long as the old company doesn't withdraw my LC/140 (this is a question because my boss is an asshole).

Maybe you should consider using better words. What do you expect your Company to do when you are the one leaving the job.

Let me rephrase: people in our dept has a concensus that my boss lies a lot, doesn't keep promises and is not very considerate or accommodating to employees' needs. Quite a few people left the company because of him (for reasons unrelated to immigration).

If they do, the PD is gone although the 3-yr extension should be safe. So looks like I should get the 140 filed regardless.

3-Year extension is available only after I-140 is approved.

With premium processing, the I-140 can be obtained in a month. I have not given my company notice yet. So they should be able to do this for me. I just can't start at Company B until 2 months from now. I think they can wait. Is there any reason I should NOT pursue the 140 at Company A?

2. OPtion two: Just give up the LC from the current company and have the new company do the whole process afresh altogether. However, 13 months may not be enough because it takes more than 2 months to prepare the LC filing, and I may not be eligible for additional H1b extensions (because you have to be filed at least 365 days prior to the expiration of the H1). One way to deal w/ it is try to recapture the days I spent out of the US during my 6 year term (which is like another 2 months). SO it may work but time is very tight. The new employer's immigration lawyer has to be super fast. Now if my current employer files 140, then I'd have enough time on the H1 to redo the process at the new company.

Does this sound right? Are there any better solutions?

You can apply of H1 Change for 15 months (13 months + 2 months for breaks outside US) and can be renewed for 1 year based on LC from Company A. Meantime Company B can file for LC and I-140. After I-140 is approved H1 can be renewed for 3 years.

That makes sense. The concerns is of course whether I can keep my 2006 PD. If the PD is locked in only after 140 is filed at Company A. This might be the best thing to do.
 
Last edited by a moderator:
xiaopang said:
1. The first option is file 140 right away to get a 3-yr extension. Then go to the new company to apply for LC and 140, but I can keep the 2006 PD, as long as the old company doesn't withdraw my LC/140 (this is a question because my boss is an asshole).

Maybe you should consider using better words. What do you expect your Company to do when you are the one leaving the job.

Let me rephrase: people in our dept has a consensus that my boss lies a lot, doesn't keep promises and is not very considerate or accommodating to employees' needs. Quite a few people left the company because of him (for reasons unrelated to immigration).

If they do, the PD is gone although the 3-yr extension should be safe. So looks like I should get the 140 filed regardless.

3-Year extension is available only after I-140 is approved.

With premium processing, the I-140 can be obtained in a month. I have not given my company notice yet. So they should be able to do this for me. I just can't start at Company B until 2 months from now. I think they can wait. Is there any reason I should NOT pursue the 140 at Company A?

Having I-140 approved gives you option for 3 year H1 with company B. But you would need I-140 approval letter for that. Will your company share I-140 approval notice with you? It seems some employer don't.

2. Option two: Just give up the LC from the current company and have the new company do the whole process afresh altogether. However, 13 months may not be enough because it takes more than 2 months to prepare the LC filing, and I may not be eligible for additional H1b extensions (because you have to be filed at least 365 days prior to the expiration of the H1). One way to deal w/ it is try to recapture the days I spent out of the US during my 6 year term (which is like another 2 months). SO it may work but time is very tight. The new employer's immigration lawyer has to be super fast. Now if my current employer files 140, then I'd have enough time on the H1 to redo the process at the new company.

Does this sound right? Are there any better solutions?

You can apply of H1 Change for 15 months (13 months + 2 months for breaks outside US) and can be renewed for 1 year based on LC from Company A. Meantime Company B can file for LC and I-140. After I-140 is approved H1 can be renewed for 3 years.

That makes sense. The concerns is of course whether I can keep my 2006 PD. If the PD is locked in only after 140 is filed at Company A. This might be the best thing to do.

The question is - how likely is that your current employer can revoke I-140? That can affect keeping PD.
Click to expand...

Good Luck.
 
xiaopang said:
1. The first option is file 140 right away to get a 3-yr extension. Then go to the new company to apply for LC and 140, but I can keep the 2006 PD, as long as the old company doesn't withdraw my LC/140 (this is a question because my boss is an asshole).

Maybe you should consider using better words. What do you expect your Company to do when you are the one leaving the job.

Let me rephrase: people in our dept has a concensus that my boss lies a lot, doesn't keep promises and is not very considerate or accommodating to employees' needs. Quite a few people left the company because of him (for reasons unrelated to immigration).

If they do, the PD is gone although the 3-yr extension should be safe. So looks like I should get the 140 filed regardless.

3-Year extension is available only after I-140 is approved.

With premium processing, the I-140 can be obtained in a month. I have not given my company notice yet. So they should be able to do this for me. I just can't start at Company B until 2 months from now. I think they can wait. Is there any reason I should NOT pursue the 140 at Company A?

2. OPtion two: Just give up the LC from the current company and have the new company do the whole process afresh altogether. However, 13 months may not be enough because it takes more than 2 months to prepare the LC filing, and I may not be eligible for additional H1b extensions (because you have to be filed at least 365 days prior to the expiration of the H1). One way to deal w/ it is try to recapture the days I spent out of the US during my 6 year term (which is like another 2 months). SO it may work but time is very tight. The new employer's immigration lawyer has to be super fast. Now if my current employer files 140, then I'd have enough time on the H1 to redo the process at the new company.

Does this sound right? Are there any better solutions?

You can apply of H1 Change for 15 months (13 months + 2 months for breaks outside US) and can be renewed for 1 year based on LC from Company A. Meantime Company B can file for LC and I-140. After I-140 is approved H1 can be renewed for 3 years.

That makes sense. The concerns is of course whether I can keep my 2006 PD. If the PD is locked in only after 140 is filed at Company A. This might be the best thing to do.
Click to expand...

xiaopang,

Please read posts on these forums about problems when employer revokes I140. There is a growing body of folks who have approved I140s but are unable to file 485 and would like to get away, just like you do.

You have a long way to go with your 2006 PD ( from your name, I am guessing you are Chinese).

Revoking I140 may depend on company situations. Sometimes, your boss cannot influence the process ( either with intent to revoke it, or with good intentions to prevent revocation, if that is what company policies are supposed to -- HR makes them up if they don't have one)

You do not need to have I140 approved to get H1 extended; just filing for labor is enough ( You get yearly extensions instead of the 3 year extensions). When your 140 gets approved, you can get 3 year extensions going forward.
 
Pkpkpkpk,

Thanks for the tip. I searched past posts as suggested, and it seems there are disagreements as to how to interpret the law and the 9/2005 info memo. It seems more dependent on how conservative your lawyer will be.

The optimistic view: once I-140 is approved, you get your 3 yr H1 extension and PD locked in;

The semi-pesimistic view: if Company A revokes I-140, you keep your H1 extension but lose the PD;

The pessimistic view: once I-140 revoked by Company A, you lose both the H1 extension and PD.

I will talk to a good lawyer and see what they say on this one.

But here is a related question: assuming the worst case, suppose I cannot keep my old PD or H1 extension. I move to Company B regardless, they file PERM and 140, which are approved after about 6-8 months, then of course I am stuck in retrogression. By then I would have maybe 5 months left on my 6-year H1. Am I eligible for extension of the H1 at that time? I seem to remember (not sure) that your application has to be pending for 365 days in order to be eligible for an H1 extension (whether 1 yr or 3 yr). I am stuck in retrogression but nothing is pending for 365 days yet. Am I eligible at that time?

pkpkpkpk said:
xiaopang,

Please read posts on these forums about problems when employer revokes I140. There is a growing body of folks who have approved I140s but are unable to file 485 and would like to get away, just like you do.

....
Click to expand...
 
xiaopang said:
Pkpkpkpk,

Thanks for the tip. I searched past posts as suggested, and it seems there are disagreements as to how to interpret the law and the 9/2005 info memo. It seems more dependent on how conservative your lawyer will be.

The optimistic view: once I-140 is approved, you get your 3 yr H1 extension and PD locked in;

The semi-pesimistic view: if Company A revokes I-140, you keep your H1 extension but lose the PD;

The pessimistic view: once I-140 revoked by Company A, you lose both the H1 extension and PD.

I will talk to a good lawyer and see what they say on this one.

But here is a related question: assuming the worst case, suppose I cannot keep my old PD or H1 extension. I move to Company B regardless, they file PERM and 140, which are approved after about 6-8 months, then of course I am stuck in retrogression. By then I would have maybe 5 months left on my 6-year H1. Am I eligible for extension of the H1 at that time? I seem to remember (not sure) that your application has to be pending for 365 days in order to be eligible for an H1 extension (whether 1 yr or 3 yr). I am stuck in retrogression but nothing is pending for 365 days yet. Am I eligible at that time?
Click to expand...
if your I-140 is approved you can get a 3 year extension regardless of 365 days pending or not.
365 day rule is only if your I-140 is not approved: then your labor should have been filed at least 1 year before
 
xiaopang said:
Pkpkpkpk,

Thanks for the tip. I searched past posts as suggested, and it seems there are disagreements as to how to interpret the law and the 9/2005 info memo. It seems more dependent on how conservative your lawyer will be.

The optimistic view: once I-140 is approved, you get your 3 yr H1 extension and PD locked in;

The semi-pesimistic view: if Company A revokes I-140, you keep your H1 extension but lose the PD;

The pessimistic view: once I-140 revoked by Company A, you lose both the H1 extension and PD.
Click to expand...

Forget the optimism or the lack of it.

One is a law and the other is a memo. A law is something that you can stand on. A memo is one that you can hope that particular agent looks to if needed.

If the law and the memo contradict, as it may in cases like these, the officer can choose to strictly follow the law.

It depends on the risk you are willing to take.
 
H1 Transfer

Gurus:

I am on 7th yr of H1 and got 3yrs H1 extension till April 2009 based on I-140.

If I do the H1 transfer to change job then can I get the H1 transfer for another 3 yrs based on approved I-140 from now or the H1 transfer will be till April 2009.

EB3-India
PD 2002
485 not filed
 
rsrinivas27 said:
Gurus:

I am on 7th yr of H1 and got 3yrs H1 extension till April 2009 based on I-140.

If I do the H1 transfer to change job then can I get the H1 transfer for another 3 yrs based on approved I-140 from now or the H1 transfer will be till April 2009.

EB3-India
PD 2002
485 not filed
Click to expand...

for another 3 years based on approved I-140 from now
 
rsrinivas27 said:
Gurus:

I am on 7th yr of H1 and got 3yrs H1 extension till April 2009 based on I-140.

If I do the H1 transfer to change job then can I get the H1 transfer for another 3 yrs based on approved I-140 from now or the H1 transfer will be till April 2009.

EB3-India
PD 2002
485 not filed
Click to expand...
I had a quick question. if a person files I140 and suddenly the visa dates become current (in our dreams !!) ..can we file for 485 ..or does he have to wait till the I140 is approved. please reply ..it is urgent ..Thanks
 
I hope you are filing the 140 via premium processing, which takes 2 weeks. If so the question isn't really a big deal is it?

mariner555 said:
I had a quick question. if a person files I140 and suddenly the visa dates become current (in our dreams !!) ..can we file for 485 ..or does he have to wait till the I140 is approved. please reply ..it is urgent ..Thanks
Click to expand...
 
As every body is asking questions, let me as a quick one. I-140 approved, want to change the company. Old company did not file my GC, they have only helped me (Even though they have my I-140 approval notice etc). As i have paid all the expenses, can they still revoke I-140? What all docs required to retain the PD when joining the new company? Also my 3 years extension is now pending and would file in May'07. Let me know if it would be a good idea to get the 3 years extension and join the new company?

Thanks in advance.
MKS
 
nonogc said:
i140 and labor belongs to your company, it does not related who pays for bill.
Click to expand...

Thanks for the reply.
I have gone through the question/answers session organized by Rajiv S Khanna couple of days back. He clearly said that one can retain the PD does not matter if the old employer cancel or revoke the I-140. The only question left is:

1. I have my 3 years ext pending this year by Oct and i need to file by May'07, Do i need to file this with old company and then join the new one or join the new one and file the ext? Please explain?
2. What all docs would be required? I have the Receipt number of my I-140, is that enough or do i need a copy or original confirmation of approval of I-140?


Thanks in advance,
MKS
 
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