H-1B transfer with approved I-140

[theshiningsun]

hi simran & other seniors,

i need to apply for extension of my H-1B with employer A. i hv approved I-140 also from employer A. so i can get 3 yrs extn on my H-1B thru employer A.

my question is - if i xfr my H-1B to employer B - will i still get 3 yrs of extn since i hv an approved I-140?

thx in advance,

[contact 01]

hi simran & other seniors,

i need to apply for extension of my H-1B with employer A. i hv approved I-140 also from employer A. so i can get 3 yrs extn on my H-1B thru employer A.

my question is - if i xfr my H-1B to employer B - will i still get 3 yrs of extn since i hv an approved I-140?

As long as the GC psonsored company does not revokes the I-140 process and they promise to continue the GC process then you go head with H-1b transfer with other company and you can also get the H-1B for three years.


But to be on the safer side it is better to do the H-1B extension first and get the H-1b extension approval for three years.

After couple of months you can try for H-1b transfer with another employer even if the present employer refuse to conitune the GC. The reason is that you can use the AC 21 probability clause. In this way you are safe as you have your H-1b for three years and also you have choice of start new Gc process with the new company if nothing works out. Also you can use the priority date of old labor as you have already have alloted alien number for you. This alien number can be found in your I-140 approval notice.

Note: This is not a legal advice, please consult an attorney

[theshiningsun]

thx contact01 for the response.

i cannot use ac21 since i hv not filed I-485 yet. sorry for not making that clear.

As long as the GC psonsored company does not revokes the I-140 process and they promise to continue the GC process then you go head with H-1b transfer with other company and you can also get the H-1B for three years.

when i apply for H1 xfr i will not be telling that to my current employer. he will only get to know when the xfr is approved n i leave him. if he revokes the I-140 after that, will that affect the approved H1 xfr?

[contact 01]

when i apply for H1 xfr i will not be telling that to my current employer. he will only get to know when the xfr is approved n i leave him. if he revokes the I-140 after that, will that affect the approved H1 xfr?

First of all you should be aware that once you transfer the H-1b to another employer then automatically the present employer will cancel the Gc process. If it is a transfer of H-1b after completing six years of H-1b with the present employer Then it is a risk. The reason is the H-1b extension after 6 years only on the basis of GC process. Therefore the present employer cancel the Gc process then the H-1b will also become invalid. Further when was your I-140 approved. IS it more than six months old. Further in your case you have not provided complete information, therefore it is difficult to answer the question.

Note: This is not a legal advice, please consult an attorney

[theshiningsun]

sorry contact01 if i hv missed giving any info. yes, my I-140 was approved more than 6 months ago.

[contact 01]

yes, my I-140 was approved more than 6 months ago.


If your I-140 is more than 6 months old , then you can transfer your H-1b to another employer but first get your H-1b extension done with the current employer on the basis of I-140 approval. I knew the money is involved and there is an expense, but once your H-1B extension is approved then H-1B transfer will be easy.

Further when you join the new employer ask him to start the GC process immediately therefore you will be able to use the priority date once the labor is approved.

Note: This is not a legal advice, please consult an attorney

[pathseeker]

As i m in a very similar situation, please don't mind my jumping in the topic.

(1) After completing 6 yrs of H1, I am going to get 3 yr extention based on I140. I hope that even these (extended) 3 yrs are transferrable. I have heard that the 3 years extension is based on I140 approval and therefore it is not transferrable. Is this right?

(2) If the current job description and new job description are different, priority date can't be maintained. True?

Please comment... Thanks.

[ppillai]

With company A 140 approval notice, you can extend the H1B with them or transfer H1B to another company for 3 more years, no matter whether you are within 6 yrs of H1B or beyond that. 140 approval should be in-tact during the H1B extension/transfer process till the approval. This is possible because approved 140 from A is a future permanent job offer, and it remains valid until A revoke it or USCIS itself revoke it. So you can use this 140 multiple times and extend H1B to any H1B employer, provided it is not revoked.

PD re-capture is irrespective of GC job requirements. If you have a 140 approval , you can use the same PD for subsequent 140 petitions (EB3, EB2..). Only exception that prevent PD capture: prior 140 should not be revoked by USCIS.

[pathseeker]

I think when we talk about 6 months after approved I-140; we are referring to AC21 rule. I have a general question about AC21 rule- I learnt that there are 2 conditions for AC21 rule application (1) I485 pending for 180 days (2) similar jobs.
Now, for people of India, I485 can't be applied till pd becomes current and this might take years. In this case, can we consider that I485 is pending?

In other words, for AC21 rule, does the I485 have to be filed? Or just the fact that I140 was approved and we could not apply I485 is sufficient?

Pardon my ignorance,
Thanks for your time...

[theshiningsun]

thx everyone and especially contact01 for ur inputs.