Switch company on 8th year H1B with pending 140&485

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luorihui

Registered Users (C)
I'm in a very difficult position and hope you guys can shed some light.

As the title states, I'm on my 8th year H1B and pending I-140 and 485. I have EAD and AP on hand. Both were filed more than 1 year ago. Company is in trouble and I have to switch job. I might get an offer from another company and they're willing to do H1B transfer.

I understand H1-B transfer can be done through my pending I-140. The problem is, what happens for the 9th year extension? By that time, my current I-140 may have been denied or revoked. Can I still extend?

I read some post stating H1-B extension can base on previous approved labor even it's from another employer, is that so?

Or if I ask the new employer to file PERM when they do H1B transfer. Can that satisfy the 365 day requirement after labor being filed?

So what options do I have now? I know it's a complex situation. Any input would be greatly appreciated.

Roy
 
luorihui said:
I'm in a very difficult position and hope you guys can shed some light.

As the title states, I'm on my 8th year H1B and pending I-140 and 485.
I have EAD and AP on hand. Both were filed more than 1 year ago.
Company is in trouble and I have to switch job.
---------------------request the company not to Cancel pending I-140 or revoke it after it is approved. FYI at this time USCIS tries to find if company has any lay off and USCIS can ask the ability to pay before they approve I-140.if they find company cant pay they may deny I-140.
I might get an offer from another company and they're willing to do H1B transfer.
------------------------H1 transfer is better option
I understand H1-B transfer can be done through my pending I-140. The problem is, what happens for the 9th year extension? By that time, my current I-140 may have been denied or revoked. Can I still extend?
-----------------I dont think you will have any base to extend H1 if I-140 gets denied(I-485 will gets denied if I-140 is denied)

I read some post stating H1-B extension can base on previous approved labor even it's from another employer, is that so?
--------------------Talk to your Lawyer he may have update from USCIS for that situation.
Or if I ask the new employer to file PERM when they do H1B transfer. Can that satisfy the 365 day requirement after labor being filed?
---------------ask the new company lawyer.
So what options do I have now? I know it's a complex situation. Any input would be greatly appreciated.

Roy
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Others will post if they find other option for your situation.
 
Hi ginnu,

First thanks for your quick response. I appreciate it.

I've been struggling between staying till I-140 get approved and leaving now. The problem is, I didn't get pay in the past few months and this made life so hard. Worse yet, if I-140 gets RFE, I will have a hard time to convince USCIS with the W2 wages. That's why I decided to make a move now.

But it's not a good prospect if I don't get to extend H1-B further. What good is it go work for a few more months then out of status? I'm desperate looking for a better options.

Roy
 
GotPR? said:
you have a backup. i.e. EAD. And you are eligible to AC21 too.
Click to expand...

Can u elaborate on the backup? My understanding was, EAD is based on the current H1-B. If I change employer and not transfer and extend H1-B, both EAD and AP will become invalid.

Thanks in advance

Roy
 
EAD and AP are not tied to H1B, but tied to your pending I-485.
As long as I-485 is pending, your EAD/AP remain valid (provided expiration date on EAD/AP is not reached).

And you mentioned EAD and AP were filed a year ago, which implies that your I-485 has been pending at least 180 days.
If that is the case, your new employer MAY NOT need to file PERM and you MAY be able to keep the exising I-485. Only potential issue is that your I-140 is not approved yet, but I remember that 5/12/05 Yates Memo mentioned that AC21 may be used even though I-140 is not approved yet(assuming I-140 didn't get cancelled).
But there are some risks when RFE came and sponsor didn't respond.

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

I-140 makes huge difference for you, not just for H1B, but also existing I-485. I'd recommend to consult with good lawyers.
 
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Hi GotPR, your answer is very helpful indeed. There is a chance that I can get my current employer to reply RFE so this may work.

As for AC21, do I need to file any document in order to invoke it?

Thanks

Roy
 
luorihui said:
Hi GotPR, your answer is very helpful indeed. There is a chance that I can get my current employer to reply RFE so this may work.

As for AC21, do I need to file any document in order to invoke it?
---------------do not file AC21 now. File it AFTER I-140 gets approved. post when I-140 gets approved and that time you need new employer permanent job offer letter with same/similar job duties to in voke AC21.
Thanks

Roy
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