H1b TRANSFER AND PRIORITY DATE PORTING

[ramramram]

H1B Transfer during 6th year H1B with 3 year extension and approved I140 .

H1B Visa Details:
H1B Started on : Nov 10, 2004.
Original H1B expiry date (6 year period) : Nov 9, 2010
Extended H1B expiry date : March 6, 2012.
Nationality : Indian

Current GC status:
Green Card : I-140 Approved. (I 797 with 3 year extension approved, but yet to be stamped on my passport in December 2009)
Priority Date : Oct 2007

Category : EB2

Waiting for Priority Date to apply I 485,

As my I140 has been approved with current employer, my H1B has been extended for 3 years until March 6, 2012 (I 797 approved, but yet to be stamped on my passport in Dec 2009).

My current scenario:
I plan to transfer my H1B to a new employer in January 2010.

1) Will I have any problem with my H1B transfer to new employer, considering I am already on my 6th year of H1B visa? Is there any reason I may be declined the transfer as I am 6th year?

2) Will the new end date on transferred H1B remain as March 2012 or, will it revert to original end date of Nov, 2010?
How long will my visa be valid after the transfer?

3) Can I use my old priority date with new employer?
Is there a time limit by which I need to apply for my Labor Certification and/or I 140 with my NEW EMPLOYER to use my old priority date?

[cinqsit]

H1B Transfer during 6th year H1B with 3 year extension and approved I140 .

H1B Visa Details:
H1B Started on : Nov 10, 2004.
Original H1B expiry date (6 year period) : Nov 9, 2010
Extended H1B expiry date : March 6, 2012.
Nationality : Indian

Current GC status:
Green Card : I-140 Approved. (I 797 with 3 year extension approved, but yet to be stamped on my passport in December 2009)
Priority Date : Oct 2007

Category : EB2

Waiting for Priority Date to apply I 485,

As my I140 has been approved with current employer, my H1B has been extended for 3 years until March 6, 2012 (I 797 approved, but yet to be stamped on my passport in Dec 2009).

My current scenario:
I plan to transfer my H1B to a new employer in January 2010.

1) Will I have any problem with my H1B transfer to new employer, considering I am already on my 6th year of H1B visa? Is there any reason I may be declined the transfer as I am 6th year?


2) Will the new end date on transferred H1B remain as March 2012 or, will it revert to original end date of Nov, 2010?
How long will my visa be valid after the transfer?

3) Can I use my old priority date with new employer?
Is there a time limit by which I need to apply for my Labor Certification and/or I 140 with my NEW EMPLOYER to use my old priority date?


Since you will be taking up a new H1 employment offer - you will get an approval
only till your 6 year limit

To extend your H1 beyond the 6 year limit you need to have labor filed (365 days earlier) or filed/approved I140 with your new employer - which considering your 6 year term ends on Nov 2010 will be right on the wire - timeline wise - (may be if you ask your new employer to file PERM the very first month you start working it can be done - but looks a little risky to me)

Yes you can use your earlier PD provided your first employer doesnt revoke your I-140


As always its best to get an advice from a good immigration lawyer on these matters

cinqsit

[patfanboston]

The following is an excerpt from Murthy's chat transcripts (Dec 2008):


Chat User : I have an approved I-140. If I switch employers, can I request
a 3-year H-1 extension with my new employer? If my old employer revokes my
I-140, will I lose the extension?

Attorney Murthy : After the I-140 petition has been approved, the USCIS
will issue a 3-year H1B extension with any other employer for that
individual, based on the I-140 petition approval. That 3-year H1B that has
been approved remains valid, even if the earlier employer revokes the
I-140 approval. One may then start a new PERM / LC filing and could
request the transfer of the earlier priority date from another employer's
I-140 petition, based on the I-140 approval. During the 3-year timeframe
of the H1B petition approval, one in this situation should have sufficient
time to start a new LC / PERM filing.

So you should be safe with what your proposing to do. Take an attorney's opinion to be sure.