Unique Case:Is employer change possible with approved I-140 in EB3 and 1 yr H-1B ext?

[indra_saha]

Hi,
I am in trouble and running out of luck. Looking for suggestions & options from gurus here; Here is my case detail :
--------------------------------------
Priority Date : April'2009 in EB3 category India
I-140 approved On : Nov'2011
I-485 : Not applied due to priority date not current for EB3.
H-1B : 8th year extension got approved just now in April'2012. It is valid from April'2012 till April'2013 (Not sure why Vermont Service Center granted only 1 year extension even with approved I-140 !)
--------------------------------------
I was expecting 3 years H-1B extension this time due to approved I-140 & direct Employer-Client relationship but I only got 1year.
My Questions :
===========
1> If I change my employer now to avail green card sponsorship in EB2 (to eventually port my EB3 PD to EB2) and attempt to transfer my H-1B, then will USCIS approve the H-1B transfer only for 1 year until April'2013 or will it be for 3 years?
2> If USCIS approves the H-1B transfer for 1 year only until April'2013 then how can my future employer get me further H-1B extension beyond April'2013 ?

I heard that H-1B extension beyond 7th year is possible under rule AC(21) only if PERM is pending with my future employer for more than 365 days.
My current employer unlikely revoke my I-140 so there is not much risk.

What are my options available ?

Thank you for taking time out of your busy schedule and reading through my questions and providing solutions.

Regards,
Indra_saha

[nandu_k_n]

Originally Posted by indra_saha

Hi,
I am in trouble and running out of luck. Looking for suggestions & options from gurus here; Here is my case detail :
--------------------------------------
Priority Date : April'2009 in EB3 category India
I-140 approved On : Nov'2011
I-485 : Not applied due to priority date not current for EB3.
H-1B : 8th year extension got approved just now in April'2012. It is valid from April'2012 till April'2013 (Not sure why Vermont Service Center granted only 1 year extension even with approved I-140 !)
--------------------------------------
I was expecting 3 years H-1B extension this time due to approved I-140 & direct Employer-Client relationship but I only got 1year.
My Questions :
===========
1> If I change my employer now to avail green card sponsorship in EB2 (to eventually port my EB3 PD to EB2) and attempt to transfer my H-1B, then will USCIS approve the H-1B transfer only for 1 year until April'2013 or will it be for 3 years?
2> If USCIS approves the H-1B transfer for 1 year only until April'2013 then how can my future employer get me further H-1B extension beyond April'2013 ?

I heard that H-1B extension beyond 7th year is possible under rule AC(21) only if PERM is pending with my future employer for more than 365 days.
My current employer unlikely revoke my I-140 so there is not much risk.

What are my options available ?

Thank you for taking time out of your busy schedule and reading through my questions and providing solutions.

Regards,
Indra_saha

First of all in order to get your further H1B extensions with your future employer, you will need EB3 I-140 approval or receipt notice (at least receipt number).

USCIS approves H1B petitions based on employment duration. For fulltime employees (employees of direct clients or working for in-house projects), generally extensions are given for 3 year period. But, in case of consultants, H1B validity varies from case to case (depending on the duration of the project at the client side). H1B validity does not depend on your approved I-140.

So, if your future employer is a client, you will get 3 year (most likely) validity H1B approval.

[indra_saha]

Originally Posted by nandu_k_n

First of all in order to get your further H1B extensions with your future employer, you will need EB3 I-140 approval or receipt notice (at least receipt number).

USCIS approves H1B petitions based on employment duration. For fulltime employees (employees of direct clients or working for in-house projects), generally extensions are given for 3 year period. But, in case of consultants, H1B validity varies from case to case (depending on the duration of the project at the client side). H1B validity does not depend on your approved I-140.

So, if your future employer is a client, you will get 3 year (most likely) validity H1B approval.

Thanks for the quick reply.
Yes. I do have the receipt number of I-140 approval notice and soon expecting a copy of I-140 through FOIA rule.
I intend to join my future employer only after approval of H-1B transfer. My follow-up question is if USCIS approves the transfer only till the original H-1B extension i.e. till April'2013, then how will I get the further H-1B extension beyond April'2013 ?
Will I be out of luck then ? Or is there any other option ?
Can I choose NOT to join Company B (future employer) if I see that H-1B transfer is granted only till April'2013 by USCIS ? Will I be in valid status with Company A (current employer) if I continue to work for them even after H-1B transfer is approved with Company B ?

Thanks in advance,
Rab

[nandu_k_n]

Originally Posted by indra_saha

Thanks for the quick reply.
Yes. I do have the receipt number of I-140 approval notice and soon expecting a copy of I-140 through FOIA rule.
I intend to join my future employer only after approval of H-1B transfer. My follow-up question is if USCIS approves the transfer only till the original H-1B extension i.e. till April'2013, then how will I get the further H-1B extension beyond April'2013 ?
Will I be out of luck then ? Or is there any other option ?
Can I choose NOT to join Company B (future employer) if I see that H-1B transfer is granted only till April'2013 by USCIS ? Will I be in valid status with Company A (current employer) if I continue to work for them even after H-1B transfer is approved with Company B ?

Thanks in advance,
Rab

Just because you have a H1B visa extended till Apr 2013, there is no rule that the new H1B with future employer will be given only till Apr 2013. Even for any reason, if you get H1B extension only till Apr 2013 with your future employer, you can always file H1B extensions when you approach the expiration.

You will still be in valid status with Company A, even after USCIS approves H1B with your future employer. So, if you want to join Company B only after knowing the details on transferred H1B visa, you can do it without any problem.

[sanjay]

I was in same situation when I moved from my original H1B employer to new employer. I had only 14 months left on original and my new employer filed for a transfer of H1B visa to his company and to my surprise I got transferred H1B visa for three years.

It was in 2010 though, an am not sure if any rule had changed.