H1B transfer with AC21

[arung]

I am with Company A with Pending AOS (July 2007) and maintaining EAD & H1B both. Now I have applied for Company B and intended to use AC21 portability. I heard from Company B that they can file AC21 portability as well as transfer my H1b as backup. Is there any issue for doing so, am I risking my AOS ?. I have already used AP 2 times to travel India.

[njverifier]

Originally Posted by arung

I am with Company A with Pending AOS (July 2007) and maintaining EAD & H1B both. Now I have applied for Company B and intended to use AC21 portability. I heard from Company B that they can file AC21 portability as well as transfer my H1b as backup. Is there any issue for doing so, am I risking my AOS ?. I have already used AP 2 times to travel India.

Absolutely no risk since your AOS is pending for more than 180 days, in fact you will be on a safer side(read about AC21 if you still have doubts contact your attorney). If Company A lays you off then your GC process will be jeopardized. Once you leave company A and join company B then even if company A revokes I-140 your AOS remains intact. All you need to do is show a same or similar job in your AC21 and also you need to produce the employment confirmation in the same or similar job at the time of adjudication. Using AP has nothing to do with your H1, using AP doesn't change your H1 status. Company B is correct, being on H1 is a safer and wiser decision till you get your greencard especially if you have a dependent whose AOS is not filed yet. Hope this helps.

[njverifier]

Originally Posted by Brady43Williams

Understood that they are two different process. But the reason you are allowed extension is because your I-140 is still valid. I-140 was not revoked during A to B move but it is revoked from B to C move (say 12 months down the line).

The basis for H1-B extension/transfer (B --> C) is lost.

Can you please clarify?

Thanks.
Cables

There are 2 different things in AC21:

1. I-140 approved and 180 days completed.
2. AOS filed and 180 days completed.

In the second case there is absolutely no risk of changing employers, that is what AC21 is meant for.

In the first case there is a restriction, yes you can change the jobs after 6 years of H1 and you will still get an extension/transfer for another 3 years as long as your I-140 is not revoked. let me illustrate, Let's say you are with company A and you have your I-140 approved for more than 180 days and you are in 6th year of H1, now you want to move to company B you will get a H1 transfer with a validity of 3 years based on the approved I-140 from company A. Lets assume you have changed to company B and you are in the 9th year of H1 and then you want to get an extension with company B for another 3 years or want to move to company C, in this case if your I-140 from company A is not revoked then you have very good chances of getting extension/transfer but lets assume company A has revoked I-140 after you left them then in no case you will be granted an extension. I hope you got the point here. Read AC21 carefully and try to understand the rules, contact your attorneys if you have doubts(do not rely on forum posts, forum posts are just opinions of people while the actual law might be different than what you think). Hope this helps.