Can Employer cancel my I-140/H1B without telling me?

[venkatdabri]

I am right now looking out for a new job and I am in my 6th year of H1B and my I-140 has been approved. I am worried if my employer finds out they may withdraw the I-140 and cancel my H1B without my knowledge before firing me. Since I am in my 6th year, and have no valid I-140 I will not be able to extend my H1B with any employer and will be forced to leave USA? Is this a real risk? Can my employer cancel my H1B and I-140 without telling me and thereby giving me no chance to change employers in my 6th year? What can I do in such a situation. I can find a new job instantaneously and I will have my latest pay stubs. But if the employer cancels my labor certification, I-140 and H1B and waits for a couple of months before firing me then I will have no way to extend my visa even though I have an employer willing to file for my H1B

[sk.aggarwal]

Your employer should not cancel your H1/I-140 w/o telling you and I dont think legally they can. Also it does not makes business sense for them to cancel unless they know that they are not going to make any money off you. However, there is nothing stopping him .. he can do what ever he wishes.

Your best bet is to get a copy of I-140 and H1, if you dont have it yet, use FOIA and start looking for another job. Keep quite abt your plans while you look and while transfer gets approved. On approval, talk to him nicely and ask him to not withdraw your I-140. Even if he withdraws, priority date is yours and you have an approved H1 for 3 years. Ample time to start new GC process.

Hope this helps, best of luck

[aashishkapoor]

Your employer should not cancel your H1/I-140 w/o telling you and I dont think legally they can. Also it does not makes business sense for them to cancel unless they know that they are not going to make any money off you. However, there is nothing stopping him .. he can do what ever he wishes.

Your best bet is to get a copy of I-140 and H1, if you dont have it yet, use FOIA and start looking for another job. Keep quite abt your plans while you look and while transfer gets approved. On approval, talk to him nicely and ask him to not withdraw your I-140. Even if he withdraws, priority date is yours and you have an approved H1 for 3 years. Ample time to start new GC process.

Hope this helps, best of luck

very good and correct advise Mr. Aggarwal

[PHANI_TAVVALA]

Your employer should not cancel your H1/I-140 w/o telling you and I dont think legally they can.

It is legal and employer can do it. I-140 is employer's property and he/she can withdraw future job offer anytime. If you have waited for 6 months after I-140 approval you can retain priority date when you restart Greencard process at new employer.

[venkatdabri]

It is legal and employer can do it. I-140 is employer's property and he/she can withdraw future job offer anytime. If you have waited for 6 months after I-140 approval you can retain priority date when you restart Greencard process at new employer.
I am tired of saying this again and again. i know the employer can withdraw I-140. I am asking if they can do it legally without telling me.

[number30]

I am tired of saying this again and again. i know the employer can withdraw I-140. I am asking if they can do it legally without telling me.

Everything is related to Job and the offer. If they say there is no more future job for that means they are withdrawing your I-140
Yes I-140 they can withdraw without telling you.
For H1 they need to terminate you first. That is when you should understand that they are going to revoke your H1. It is legal requirement.

Even if they inform They may not use the exact words like "withdrawing your I-140" or "withdrawing your H1"

[venkatdabri]

So essentially they can withdraw my I-140 without telling me and wait 3-4 months till it is withdrawn and then terminate me. In this case, even if I find another employer since it is my 6th year in H1B, I can't continue to stay in USA. Will I be able to use the labor certificate to get a one year extension, or can that also be terminated without telling me?

[number30]

No, if the I-140 withdrawn, you can not get H1B extension. There is no need to tell you anything, except your termination.

I think He can get extension even if I-140 is withdrawn as long as he has proof like I-140 approval notice.

[PHANI_TAVVALA]

So essentially they can withdraw my I-140 without telling me and wait 3-4 months till it is withdrawn and then terminate me. In this case, even if I find another employer since it is my 6th year in H1B, I can't continue to stay in USA. Will I be able to use the labor certificate to get a one year extension, or can that also be terminated without telling me?

Employer can withdraw job offer anytime and it is perfectly LEGAL. The employer can tell USCIS, conditions have changed since they applied for I-140 and they cannot afford to give you a job. And they are not required to notify about withdrawal though they can notify you as a courtesy. Since your 7th year extension would be based on pending/approved I-140 (or pending labor). In this case labor cannot be used if I-140 is withdrawn. But if your I-140 has been approved for 6 months you can transfer to a new employer and capture priority date.

[venkatdabri]

But if your I-140 has been approved for 6 months you can transfer to a new employer and capture priority date.

My I-140 has been approved for 18 months. So even if my employer fires me after having withdrawn the I-140 I can still transfer to another employer and get extension even though the I-140 is no longer in file. Is this what you are saying?

[abracadabra102]

My I-140 has been approved for 18 months. So even if my employer fires me after having withdrawn the I-140 I can still transfer to another employer and get extension even though the I-140 is no longer in file. Is this what you are saying?

I assume you did not file I485. Please consult an attorney before taking any major decision.

[ronhira]

My I-140 has been approved for 18 months. So even if my employer fires me after having withdrawn the I-140 I can still transfer to another employer and get extension even though the I-140 is no longer in file. Is this what you are saying?

trust - in employer-employee relationship is very important..... if u don't trust u'r employer and if u feel that u'r employer is setting up to get u out of here by withdrawing u'r i-140 before firing u..... for the sake of u'r own sanity, which is most important.... it is best for u to change employer...... there is no need to wait for the drama before u make a move.....

[abracadabra102]

trust - in employer-employee relationship is very important..... if u don't trust u'r employer and if u feel that u'r employer is setting up to get u out of here by withdrawing u'r i-140 before firing u..... for the sake of u'r own sanity, which is most important.... it is best for u to change employer...... there is no need to wait for the drama before u make a move.....

Good point.
To venkatdabri:
Unlike H1B, employer is not required to withdraw I140 after laying off an employee. Why do you think your employer will withdraw I140 quietly and will let you go after a couple of months? This is not normal practice unless employer is vindictive and the relation already soured between you. I do not know if you will be able to save priority date unless you already have an approved labour and I140 through another employer. Please consult a good attorney.

[PHANI_TAVVALA]

My I-140 has been approved for 18 months. So even if my employer fires me after having withdrawn the I-140 I can still transfer to another employer and get extension even though the I-140 is no longer in file. Is this what you are saying?

Unfortunately, you will have hard time getting approval if your I-140 is cancelled. You will need to act before this happens. But if your current employer files your 7th year H1B extension you will get 3 year approval based on approved I-140. You can then transfer to another employer at that point (for the remaining period of 3 years) even if your old employer cancels I-140. You will get further extensions based on new PERM/I-140 that will be filed by your new employer.

Alternatively, you can try to find an employer who will file your PERM labor now (generally gets approved in 3-4 months) and transfer H1B based on approved I-140 (from your old employer). If I-140 is cancelled, by then, by your current employer, your new company can ask for 7th year extension based on APPROVED PERM (you can't get H1B extension based on pending PERM unless it has been pending for at least 1 year).

[GCHope2011]

My I-140 has been approved for 18 months. So even if my employer fires me after having withdrawn the I-140 I can still transfer to another employer and get extension even though the I-140 is no longer in file. Is this what you are saying?
You can only get 7th year extension in the following scenario after moving to a new employer:
- Your file AC21 on joining new employer &
- Your new employer files PERM and it is approved or it is filed and pending for more than a year

Or

- Your file AC21 on joining new employer &
- PERM is cleared, I-140 is pending or approved

In either case, the basis for extension is the existence of a fresh GC process, not because you had a previous approved I-140 from a previous GC process. If you do not have a fresh GC process and your current I-140 is cancelled, there will be no basis for 7th year extension.

The only thing that carries over from the current GC process to the new one is your priority date, if the new GC process is for a job "substantially similar" to the one for the previous GC process.