H1 approved for 1 year only

[prb_babu]

Below is my situation.

I am on 8th year on extended H1 from my previous employeer's approved I-140.
Two companies did my H1 transfer. Both got approved. One for 3 years another for 1 year (only 8 months left now).
I am already working for the second company. They are filing for my Labor now.

My question: Can I extend my H1 after 1 year period is over assuming that my Labor won't get approved by then because of an audit or so? Or do I need to leave the country as my 6 year period is over.
Do I have option to move to the 3 year 797 approved company now?

Your comments are very much appreciated.

Thanks,
Babu

[shervin143]

My question: Can I extend my H1 after 1 year period is over assuming that my Labor won't get approved by then because of an audit or so? Or do I need to leave the country as my 6 year period is over.
>>> You need to leave the country. Your only option to extend the petition now is if both PERM and I-140 gets approved. It was a bad decision to join a new employer after the 6th year with only 1 year extension.

Do I have option to move to the 3 year 797 approved company now?
>>> Yes, leave the country and return back on their petition.

[prb_babu]

Thanks for your reply, Shervin. Sorry I was not clear before. I got my i140 approved and got 3 year extension before joining this company. But the current i797 is only for 1 year from current company.
I have two follow-up questions.

Why do I have to wait for I140 approval? Is getting an approved Labor gives me another year extension, right?
Why should I have to leave the country? I can still move to the next employer with the new I797 and stamp the visa when I have to go out to India, right?

[shervin143]

Why do I have to wait for I140 approval? Is getting an approved Labor gives me another year extension, right?
>>> Not unless the labor was filed 365 days before. Your previous employer would have revoked the I-140 or will be no longer willing to continue to GC process. So you cannot use that I-140 to file an extension with the new employer. The new employer's PERM should be pending for 365 days or both PERM and I-140 should be approved to file an extension.

Why should I have to leave the country? I can still move to the next employer with the new I797 and stamp the visa when I have to go out to India, right?
>>> You cannot just have multiple petition from different employers and keep working for any employer you wish. As per USCIS regulations, if a candidate did not join the employer or if he/she quits the job, the employer is suppose to revoke the petition. After working for an emplo0yer, if you wish to go back to another employer, either a H1B transfer need to be filed or you should leave the country and return back on the other employer's valid petition to get an I-94 associated to that particular employer's petition to start working.

[prb_babu]

one year extensions based on previous labor

Thanks for your reply, Shervin. Thanks a lot for spending time on my query.

I understand your point on working with the other company. My current company attorney suggests that they plan to continue to apply for one year extensions of my H-1B status on the basis of my previously approved labor certification.

Does this makes sense? Since I have a previously approved Labor, can that be used for extending my current company's H1 until we get the LC and I140 approved?

Thanks,
Babu

[shervin143]

The labor that got approved is for that specific employer. Unless the previous employer is okay with proceeding with the GC process eventhough you are no longer working for them, you cannot use that labor or I-140 to file further extensions. What if the previous I-140 is already revoked or the employer has sent a request to revoke it and it is in the process of getting revoked? If USCIS checks with that employer, will they be able say that they are continuing with the GC process eventhough you are not working with them? Extensions after the 6th year is based on the intention of the employer to proceed with the future employment for the candidate (GC process). If you will no longer work for that employer and if they are no longer interested in continuing with the GC process, then how can use you their I-140 to request further extension. That is why the current employer need to have filed the PERM 365 days ahead. It gets complicated. Consult a immigration attorney on your own.

[prb_babu]

Thanks

Thanks for the reply. I will check with an immigration attorney. Will keep you posted.

I guess I do not have any other option than continuing the current process and expect to get labor approved with in this year so that I can do a i140 premium process and not to get in to Audit process.

[prb_babu]

Can extend H1 based on previously approved I-140

Hi Shervin,

I checked with lawyer and this is what I found.

I got 1 year extension as my PD (based on previous 140) was current at the time of applying H1 transfer.
My company will request an H1 extension in another 2-3 months and since PD is back to Aug,2007 and is no longer current for me, will be able to get another 3 year extension. If it comes back to current in 3 months (which is unlikely), I will still be able to get 1 year extensions till my Labor and 140 approvals from current company

I guess that makes sense and some peace of mind for me!

Any thoughts?

[shervin143]

Well, it all depends on whether the previous employer is still willing to proceed with the GC process or not. If they have sent a notice to revoke the I-140 or if enquired by USCIS they mention that they are no longer willing to carry forward with the GC process, then an extension based on that I-140 will not be possible.

Hi Shervin,

I checked with lawyer and this is what I found.

I got 1 year extension as my PD (based on previous 140) was current at the time of applying H1 transfer.
My company will request an H1 extension in another 2-3 months and since PD is back to Aug,2007 and is no longer current for me, will be able to get another 3 year extension. If it comes back to current in 3 months (which is unlikely), I will still be able to get 1 year extensions till my Labor and 140 approvals from current company

I guess that makes sense and some peace of mind for me!

Any thoughts?

[prb_babu]

Seems like even though the previous employer revoked 140, which probably most of them do, it is still valid for H1 extension and PD porting until USCIS revoked it (for fraud or so)

[shervin143]

As of my knowledge,

PD porting - YES.
H1B extension based on the revoked I-140 - NO.

Please update the forum if you were able to successfully extend the H1B based on the revoked I-140.

Seems like even though the previous employer revoked 140, which probably most of them do, it is still valid for H1 extension and PD porting until USCIS revoked it (for fraud or so)

[inalap]

Seems like even though the previous employer revoked 140, which probably most of them do, it is still valid for H1 extension and PD porting until USCIS revoked it (for fraud or so)

Hi,

am in the same situation as yours was. Can you please confirm if you were able to extend you H1 , and whether 140 revokal had any effect on it ?

Kindly respond as it can give some peace of mind to me as well.

Thanks,

[prb_babu]

I changed two companies after this post with H1 extending to 3 years for each change with my prviously approved 140

Hi,

am in the same situation as yours was. Can you please confirm if you were able to extend you H1 , and whether 140 revokal had any effect on it ?

Kindly respond as it can give some peace of mind to me as well.

Thanks,

[inalap]

So I assume that your 140 was not revoked by your previous employer.. Correct ?
In my situation. ,they just gave me a year and hence trying to find out how would future extensions be done , if at all my 140 is revoked ( hope it doesn't )

[prb_babu]

Re

So I assume that your 140 was not revoked by your previous employer.. Correct ?
In my situation. ,they just gave me a year and hence trying to find out how would future extensions be done , if at all my 140 is revoked ( hope it doesn't )

What you mean by "they just gave me a year"? Who ?
USCIS revokes 140 because of fraud, it invalidates everything. I am not sure about any other revokes. It is always advicable to check with a lawyer.

In my case, my first company did my 140 approved and i changed two .. no three companies after that with H1 extending 3 years everytime except one time when my pd was current when I got my H1 extension was only for an year.. then it went back to 2004 and next time I got my 3 year extension. But funny thing is I have my 2 years pending with no labor yet.