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Immigration Issues/Job change after PERM process in H1B 7th year

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QUESTION: Hello,

Will be very grateful for any information and assistance you can provide me. 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 2 months). Can you 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 transfer the H1 after PERM approval comes in? If that is the case, what is the process? Do I need the PERM approval copy and immediately Employer B needs to file for the H1 transfer so that I get an additional year? I am told that this may not be the case and I can't use this PERM approval to get an extra year.

2. 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 4-5 months to make the filing, assuming they begin in May/June. Is that ok not to have the labor filing done before 365 days?


I know that the safer thing might be to stick to employer A until they file 140 and it gets approved but that will take another 6 months.. I'd rather make the move before that.

Again, will be very glad to know what you think.

Thank you.

ANSWER: Dear Rajesh,

Here are your questions and my answers:


1. Can I transfer the H1 after PERM approval comes in?

I believe you can transfer your H1b.

If that is the case, what is the process?

Have your new employer initiate the transfer of your H1b.

Do I need the PERM approval copy and immediately Employer B needs to file for the H1 transfer so that I get an additional year?

No.

I am told that this may not be the case and I can't use this PERM approval to get an extra year.

It seems to me (not sure) that your PERM was filed more than 365 days before your H1b end date.  You might want to check because the facts you gave was not very clear.  If it was filed 365 days before your H1b end date, you can continue to extend your current H1b, whether with the new or current employer.

2. 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 4-5 months to make the filing, assuming they begin in May/June. Is that ok not to have the labor filing done before 365 days?

Yes the new employer can also file a PERM for you.  However, you can't use it to extend your H1b.

Jack


---------- FOLLOW-UP ----------

QUESTION: Hi Jack,

Thank you very much for your response. Just wanted one more clarification since you said that the facts I gave you were not very clear.

My current PERM has been filed more than 365 days before my H1B expires (H1 expires in Feb 2013 and the PERM was filed in Jan 2012).

So, if my PERM approval now comes in (say in the next 2 months or so), and I then transfer my H1B to the new employer, they can get the 1 additional year in addition to the current expiry date? Basically, when I do the transfer, instead of Feb 2013, can they get the extension until Feb 2014?? That will also allow me time to file the new PERM from the new employer.

Please let me know.

Thanks again.

Answer
Hi Rajesh,

1. I believe you can get 1 additional year in addition to the current expiry date given the fact that your PERM was filed more than 365 days before your H1b 6th year expiration.

2. Your new employer can file PERM for you anytime (even now), so I am not sure what you meant by "this will also allow me time to file the new PERM" but I don't think you had a question there, so I will leave it.

Jack

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Jack Sung

Expertise

Can answer: Immigration and visa issues Can't answer: Everything else

Experience

Been a practicing immigration attorney for 4 years.

Organizations
Taiwanese American Lawyers Association. American Immigration Lawyers Association. Los Angeles County Bar Association

Publications
Southwestern International Law Journal

Education/Credentials
J.D. from Southwestern Univ. School of Law in 2007. Licensed attorney in California

Awards and Honors
LACBA 2011 Outstanding Public Service Award

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