View Full Version : Employer Switch with 4 months to H1B expiry

08-22-2006, 01:27 PM
My H1B term is scheduled to expire in 4 months (Jan 07). I have got the I140 approval (labor priority date: April 2004) and am in the long queue of aspirants waiting to file the 485 petition. At this stage, I am considering switching employer.

My new potential employer has an outstanding EB3 labor petition in the backlog processing center, which he is willing to substitute to me. The EB3 application has a priority date of September 2001. As you can see, the main reason I am looking to switch employer is to expedite the green card processing.

My current employer told me that he will be withdrawing the approved I140 petition, if I leave employment. He does not want to bear the overhead of having to maintain the 'ability to pay' , (though I agreed to compensate him reasonable amounts to keep the process going in parallel).

I am afraid, if the labor substitution petition gets rejected for some reason, I do not have a backup (since my employer would have withdrawn the approved I140 petition by then and there is no other labor petition that has been outstanding for more than a year) and I will be forced to leave the country.

Based on the above, please provide me your expert opinion on the following:
What is the probability of labor substitution petition getting rejected ? FYI, due diligence is being done as part of the labor substitution and there is a very good fit between my profile and the labor being substituted.

The new employer's labor petition dtd (Sept 2001) is still in the backlog processing center and not yet approved. Should that be construed as a warning light ?

If the labor petition does get approved; what is the probability of labor substitution being rejected in the I140 stage ?

Would you advise working out an arrangement with my present employer to continue with the green card processing in parallel as a backup (that will mean, I will have to compensate him significantly higher and he is difficult to work with)

Overall, would you advise switching employer at this stage ?

08-22-2006, 02:17 PM
When you apply for a H1 transfer, get the 3 year extension based on the approved I-140. If this goes through, in my opinion, switching employers is worth the risk

GC Khichdi
08-22-2006, 02:54 PM
Do few things in parallel. Apply for 3 yrs extension with Premium processing and then consider changing employer. Also discuss with new employer that if they can initiate LC transfer procedure and you will only start working after LC approval is obtained.

Once LC transfer is approved you are safe if you have received 3 years ext. If you haven't you will get 1 year ext as you won't have an approved 140 with new employer (unless you apply uder new premium processing for eb3 and get it approved).

Worst case, if the LC transfer doesn't go through and if new employer is ready to file for new LC (PERM), get 3 years ext on H-1 with current employer and then switch.

08-22-2006, 06:35 PM
You may want to look the discussions at "Transferring Companies after I-140 approval". I am in the same situation and I consulted a Lawyer and I have posted the outcome.