| Q. |
Maintain GC application while switching employers?
I am approaching my 6th year on H-1B visa. I have an approved labor and pending I-140 with my current employer.
If I change my employer now, will I be able to get an H-1B extension after the 6-year H-1B expiration based on my approved labor?
At what point can I switch jobs AND be able to port my GC application to my new employer?
Thank you, appreciate the service.
User's Location:
Dallas, Texas, United States of America
Category:
Employment-based Green Card
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| A. |
Thanks for your question. It would be helpful to know the dates of your labor and I-140 to provide a better and more targeted answer. However, here are the applicable rules.
1. Regarding extending your H-1B. To be eligible for an extension past your sixth year, one of the following must apply: (1) 365 days or more must have passed since the filing of an application for labor certification (Form ETA 750 or Form ETA 9089) that was filed on your behalf or (2) 365 days or more have passed since the filing of an employment-based immigrant petition (Form I-140) on your behalf, provided the petition has not been denied.
Note that all other H-1B extension requirements apply - i.e. you must be in valid H-1B status when the Form I-129 is filed. Also, important to note is that the labor certification application and Form I-140 do not have to be from the new employer, i.e., the employer filing the extension request need not be the employer that filed the labor certification or petition on your behalf. Thus, the H-1B extension request may be made by your new employer.
2. Regarding timing of switching employers. Under AC 21, individuals who have filed for adjustment of status (I-485) and whose cases have been pending for more than 180 days may now change jobs or employers, without affecting the validity of the underlying I-140 or labor certification, as long as the new job is in the same or a similar occupational classification. This is important; the new job does not have to be identical, but it should be fairly similar in terms of duties, etc.
There is a fair amount of controversy and a variety of opinions on whether you can safely switch employers using AC21 if the underlying I-140 has not yet been approved. USCIS regulations permit, once your I-485 has been pending for 180 days or more, to port your job to a different employer. However, this is not without risk and many immigration lawyers approach this very carefully. Since the I-140 is not approved, in case of an RFE, your current (or former) employer may decide not to respond to the RFE which may, in turn, jeopardize your adjustment of status. USCIS states that after 180 days have passed since the filing of I-485 adjustment of status, withdrawal by the sponsoring employer does not invalidate the I-140 for porting purposes.
A very careful analysis of your dates and individual situation would be helpful to answer the question with more detail; however, the above analysis should provide you with the general landscape.
Please do not hesitate to contact me with any questions or comments.
Best regards. |
| |
Dimitar Michailov
Immigration Lawyer
Capitol Immigration Law Group LLC
(888) 878-4721
www.cilawgroup.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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