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  #1 (permalink)  
Old 02-06-2010, 08:37 AM
Donor
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Feb-09
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EB2
I140 Mailed Date
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02/05/2010
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India
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Question H1B Transfer in 6th Year while PERM Pending

Hello,

My wife has been offered a position by her client, a company which received TARP funding and repaid it. These are her immigration details:

H1b start date: 01-Oct-2004
Perm applied: Jan-2008
Audited Twice: First time because of FRAGOMEN and second time asking for some documents
Perm Status: Pending
Original H1b expiration: 30-Sep-2010
H1B extended because Perm has been pending for more than a year
Current H1b expiration: 30-Sep-2011

I do understand it is better to transfer with an approved I-140 because it allows for porting priority date and 3 year extension of H1 with new company but I am not sure new company can wait that long.

In the current situation, is it possible to transfer H1b and get the validity until 30-Sep-2011? Appreciate your responses.

thanks
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  #2 (permalink)  
Old 02-06-2010, 01:22 PM
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Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice
Default

Hi Horscorp,

It is possible to transfer the H1 with validity to 30-Sep-2011 as long as the PERM is active. However, once approved, the PERM will "expire" if no I-140 is filed within 180 days, and eligibility for further one year extensions would end. Similarly, if the employer withdraws the PERM or if it is denied and no appeal is taken further extensions based on that PERM would not be granted.

Ann
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  #3 (permalink)  
Old 02-06-2010, 02:21 PM
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horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute
Default Thank You!

Hi Ann,

Thanks for the response. I am very glad to know that H1 can be transferred to new company with existing perm application. If the transfer takes place, we will be aiming to apply for a new Perm from the new company asap or before 30-Sep-2010.

Can you please confirm applying for new Perm with new company before Sep 2010 will be enough to request extension beyond Sep 2011?

thanks again!

horscorp


Quote:
Originally Posted by aruben@srrlaw.us View Post
Hi Horscorp,

It is possible to transfer the H1 with validity to 30-Sep-2011 as long as the PERM is active. However, once approved, the PERM will "expire" if no I-140 is filed within 180 days, and eligibility for further one year extensions would end. Similarly, if the employer withdraws the PERM or if it is denied and no appeal is taken further extensions based on that PERM would not be granted.

Ann
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  #4 (permalink)  
Old 02-06-2010, 05:39 PM
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Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice
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A new PERM filed before September 2010 will [i]probably[i] support an H1 extension beyond September 2011. There is contrary language in a May 30, 2008 USCIS memo on this issue, but the Vermont Service Center in liaison meetings with AILA has specifically confirmed that as long as the Perm is filed at least 365 days before the start date of the H-1 petition a one year extension is available.
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  #5 (permalink)  
Old 02-06-2010, 09:29 PM
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horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute
Default more questions

Ann,

Thanks for your response, really appreciate it.

I read through the memo and found guidance on changing companies while I140 is pending but did not find anything on transferring H1b while Perm is pending.

I am sure you are referring to the first part of the memo which mentions validity and expiration of LC and Perm should be filed 365 days before the end of 6 years of H1b.

Hypothetical (and probable) scenario:

She joins the company in the next three months and applies for Perm before Sep 2010. By Sep 2011, her Perm might have been denied or approved and expired or (small chance of it being approved and not expired) . In first two cases, she cannot use her current Perm and has to rely on new Perm application with new company to extend H1B. Could this petition for extension be rejected because the new Perm was not filed 365 days before end of 6 years? I am looking at worst case scenario and the basis for USCIS to reject the extension.

Sorry for asking too many questions. Hope you enjoyed 28.5 inches of snow we live in the suburbs.

horscorp



Quote:
Originally Posted by aruben@srrlaw.us View Post
A new PERM filed before September 2010 will [i]probably[i] support an H1 extension beyond September 2011. There is contrary language in a May 30, 2008 USCIS memo on this issue, but the Vermont Service Center in liaison meetings with AILA has specifically confirmed that as long as the Perm is filed at least 365 days before the start date of the H-1 petition a one year extension is available.
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  #6 (permalink)  
Old 02-07-2010, 10:23 AM
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Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice Ann Ruben is just really nice
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Horscrop,

Yes, it is possible that USCIS would reject the extension because the PERM was not filed 365 days before the end of six years. However, a rejection on this basis is clearly contrary to both the language and intent of AC21, and I believe, could be successfully challenged on appeal.

Ann

PS-Am enjoying all the snow---so beautiful and peaceful.
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  #7 (permalink)  
Old 02-08-2010, 07:09 PM
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Default Job Change while I-140 approved but I-485 not filed

Hi,

I am in a similar position, but slight variations.

H1B from Jul 2003. Already on 7th year extension which expires in Oct 2010. My Priority date is Jun 2007 and I-140 is already approved but, I could not apply for I-485 in Jul 2007 window.

I have the following questions.
1. Can I change a job ? If so, for how long will the H1-B be valid.
2. If the H1-B is valid, can the USCIS reject the application if the my current employer decides to revoke the I-140.
3. If I-140 is revoked, is there is possibility to port the priority date or will it be an entirely new priority date based on new application.

I have been getting conflicting opinions from different people. A particular immigration lawyer I consulted adviced me against a job change, though I might get a new 3 year H1B, he feared CIS might revoke it if I-140 is revoked (it is quiet clear my employer will revoke the I-140). Is there any guidance/cases regarding the same from CIS ?

Thanks very much for your advice.
Much appreciated.
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  #8 (permalink)  
Old 02-09-2010, 07:56 AM
Donor
Priority Date
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Feb-09
Category
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EB2
I140 Mailed Date
:
02/05/2010
Chargeability
:
India
Processing Stage
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I-485
I485 Mailed Date
:
Compare
Join Date: Feb 2009
Posts: 17
horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute
Default Thanks

Thanks a lot. I understand the process better now.



Quote:
Originally Posted by aruben@srrlaw.us View Post
Horscrop,

Yes, it is possible that USCIS would reject the extension because the PERM was not filed 365 days before the end of six years. However, a rejection on this basis is clearly contrary to both the language and intent of AC21, and I believe, could be successfully challenged on appeal.

Ann

PS-Am enjoying all the snow---so beautiful and peaceful.
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  #9 (permalink)  
Old 03-09-2010, 02:49 PM
Donor
Priority Date
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Feb-09
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I140 Mailed Date
:
02/05/2010
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
Compare
Join Date: Feb 2009
Posts: 17
horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute horscorp has a reputation beyond repute
Default one more question

Hello Ann,

Perm application which has been pending is now approved. Can we go ahead with the transfer of H1B or wait for the application of I140?

thanks
horscorp
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  #10 (permalink)  
Old 03-25-2012, 09:09 PM
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gcissues1 is on a distinguished road
Default Some advice please Ann!

Quote:
Originally Posted by Ann Ruben View Post
A new PERM filed before September 2010 will [i]probably[i] support an H1 extension beyond September 2011. There is contrary language in a May 30, 2008 USCIS memo on this issue, but the Vermont Service Center in liaison meetings with AILA has specifically confirmed that as long as the Perm is filed at least 365 days before the start date of the H-1 petition a one year extension is available.
Hi Ann,

Thanks for all your comments, they're very helpful to people like me who rather badly need sound advice on GC issues. I'd be very grateful if you could please let me know what you think of the below? Here is my situation

My current H1 (after all recaptured time etc.,) is on the 6th or 7th year - am not really sure, but think it must be the 7th and is valid until Feb 2013.

I am with employer A and My labor PERM was filed in Jan 2012, still awaiting the decision and hope to hear in the next month or so (as it's already been over 2 months). Please let me know my options as below as I'd like to move to employer B (who was actually my previous employer).

1. Can I do so now? Before PERM is approved? I think the answer is no given I only have less than 9 months left on the H1
2. Can I do so after PERM approval comes in? If that is the case, what is the process? I need the PERM approval copy and immediately Employer B needs to file for the H1 transfer so that I get an additional year?
3. If I can do that, can my new employer also immediately file for new Labor PERM - I don't think I'll have the 365 days before expiry of the 7th years of my visa as it will take them at least 2-3 months to make the filing, assuming they begin the process in May/ June. Is that ok not to have the labor filing done before 365 days?
4. On top of all these complications, the added thing is I'm going to India in May to get married. So, is there anything I must consider for my spouse's status?

It's probably best to somehow stick onto employer A until they file 140 and it gets approved but that will take a few more months at least.. I'd rather make the move before that.

Please let me know your thoughts.
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