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View Full Version : Transfer during H-1 7th year extension and responded PERM audit


vkanuri1
06-14-2012, 02:57 PM
Hi,
I am currently working for Company A (client) as a contractor through Company B (who holds my H1). My H-1B started on Jan 2 2007 and

the six year limit expires on Jan 1 2013. Company A (Client) wanted to hire me fulltime from November 2011 and but since I was nearing

my 5th year completion in December 2011 I had to wait for my Labor to be approved. Company B filed for my Labor (PERM) on 12/19/2011.

I thought if my labor was approved and I filed I-140 thru premium I can file for the transfer and get a 3 year extension. My PERM was

selected for Audit in April 2012 and the response (including my physical signature) was sent during the same month. The status is

still pending. Also when my PERM was filed I was in VA and then moved to TX in February 2012 for the same job and client. My current

company attorney filed for the H-1B amendment (for moving to TX) and along with amendment they also filed for my 7th year extension

till Jan 2014. I got an RFE yesterday requesting a client letter to show they can support me till 2014.

My Questions are

1. Can I have Company A file for my visa transfer and get a 7th year extension based on the pending labor from Company B?

2. If I move to Company A but still request Company B to continue my labor and I-140 process for future employment and if I get the GC thru them move back to Company B and work for 6 months or so?

Please let me know if there are any other options?

Thanks
V K

maori86
09-08-2012, 10:54 PM
hi VK,

My situation is exactly the same. I am not sure how to proceed. my labor is under audit and my 6th year ends in sep2013. I have an offer from another employer. Please try to post something of you have heard or found any resolution to this problem.

Maori

vkanuri1
09-09-2012, 12:44 PM
Hi Maori....My labor was selected for a second audit last month....I actually am moving to a new employer (has over 300 employees) now and having him start a new GC process...H-1 transfer is under way....And I did get my 7th year extension prior to the second audit based on the pending labor....it is only advisable to apply for the 7th year extension only 6 months prior to the 6th year expiry date....I heard everyone who applied more than 6 months prior was getting rejected based on this....

Also you have one more year for your 6 years right?...talk to your new employers immigration folks and ask them for

1) do they process future GC now and you can move to them once the labor is approved. Once you move there...I-140 will be filed based on your paychecks thru the new employer and once that goes thru....you can apply for a 3 year extension....you can file for any number of PERMs parallely as long as they are not with the same employer for that position.
2) Or move right now and take a chance and have them file for Labor asap...and hope you get it approved before the 6th year ends....if it does not...then you have to go to your home country for one year...

All the best....

vkanuri1
09-09-2012, 12:50 PM
Hi Maori....My labor was selected for a second audit last month....I actually am moving to a new employer (has over 300 employees) now and having him start a new GC process...H-1 transfer is under way....And I did get my 7th year extension prior to the second audit based on the pending labor....it is only advisable to apply for the 7th year extension only 6 months prior to the 6th year expiry date....I heard everyone who applied more than 6 months prior was getting rejected based on this....

Also you have one more year for your 6 years right?...talk to your new employers immigration folks and ask them for

1) do they process future GC now and you can move to them once the labor is approved. Once you move there...I-140 will be filed based on your paychecks thru the new employer and once that goes thru....you can apply for a 3 year extension....you can file for any number of PERMs parallely as long as they are not with the same employer for that position.
2) Or move right now and take a chance and have them file for Labor asap...and hope you get it approved before the 6th year ends....if it does not...then you have to go to your home country for one year...

All the best....

maori86
09-09-2012, 10:44 PM
Thanks for the tip VK,

But my situation is such that my new employer wants me to transfer my H1b to them. Also, they are cap exempt a Research organization (Not non profit). My 5th year ends this Sep and they are going to extend an offer to me. So do i tell my current employer to keep processing my GC, because I do not see my future employer process GC without me start working for them. Also, since I am switching to a cap exempt does that mean it is a fresh H1 or the same duration is counted towards this.

So even if they start GC when I join them, it will have to labor approved atleast by next Sep. Do you think this is advisable? I am going to consult my attorney, but wanted your thoughts, since you have first hand experience.

Any thoughts welcome!!

Maori

vkanuri1
09-10-2012, 02:44 PM
I may be wrong, but I dont think a cap exempt/cap subject has anything to do with the 6 year limit. The 6 year limit applies to H-1B, irrespective of who files it (cap subject or exempt employer). If your current employer is willing to continue the process for sure then you can go ahead with the new employer. However, if you get another audit like I did then it all depends on your employer willing to spend time for responding. If you know them tooo well, then it will you following up regularly. However I know friends who thought their employer was nice enough to take care of their needs....but turned out they dont....Talk to your new attorney and then make a decision...Ask them about their previous GC statuses...if they got audited recently and other stuff....based on their previous record will your decision be depending on...sorry I wasnt of much help :(

maori86
09-10-2012, 03:06 PM
I am glad I found this forum IV. Also, I am glad that you are taking time to write this for me.. I am really appreciative of it.

However, Just to close this,

I spoke to my lawyer today and I told him that I will be leaving and moving to a new employer.

He just confirmed that even if I move to another employer(employer B), I will have to start the whole process again but port date from current labor ( i knew this already), but this is the part that I need to confirm for sure ,,,,,

"Since my labor is under audit, and will go past 1 year coming Jan pending, even if I switch employers, I can extend my H1B based on pending labor from employer A(my current employer)". He also mentioned that he cannot withdraw even if I leave, since it is under audit. So I am assuming it will be under process even if I leave.

But say i were to leave and ,my labor got approved before 365 days, I am assuming I can file my I140 even though I am not with them and then extend for 3 years. ---??? Is that correct??

I guess I need to confirm this in writing from my HR.

Maori

vkanuri1
09-10-2012, 03:28 PM
Not a problem....glad to contribute as future generations can understand the different scenarios. But here are some points I want to talk about

1. "I spoke to my lawyer today and I told him that I will be leaving and moving to a new employer"...want to make sure the lawyer is associated with the new employer...if not then talk to the attorney's team who will be processing your immigration matters, as their views are final and might differ.
2. As far as I know, porting your PD can happen only when I-140 is also approved. Not just the PERM approval.
3. If your current employer continues the GC process, then once you get the GC you will have to work for them for a year or 6 months...since it comes under future employment process.
4. When you file for a H-1 extension along with the PD porting...you shud be able to get 3 year extension...

Having said this, I would advice you talk to the new employer's attorney firm.

Best wishes
VK