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Immigration Issues/On H1B, I140 Approved, Laid Off

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QUESTION: My questions:

I got my H1B in Oct, 2009 and my 6 yr limit ends in Oct, 2015 but I have got my I140 approved with Priority Date of Sept, 2012, now I was laid off from my job on Nov, 04 and my company would run my payroll till Nov, 29 now I asked my consulting firm to file for my H1B with internal project starting Nov, 18th and that H1B is under normal processing with USCIS.

Now I got project with Client for consulting firm and so do I need to file another H1B with different client location or can I go ahead and ammend my H1B application which is in process with USCIS?

How soon should my consulting firm start my Green Card Process given my I140 is approved and can I port my current priority date of Sept, 2012 with my new employer?

How long can I keep on extending my H1B visa beyond my 6 yr limit with approved I140? Normally how long does company keep I140 active?

Can I keep my priority date if my previous company revokes my I140 application? What is the process for I140 revokation?

If my company has revoked my I140 then can I request for 3 yrs H1B application based on my approved I140 or not?

If my company has revoked my I140 then how soon my next company - consulting firm has to file for Perm/I140?

ANSWER: Hi,

An amended H1B petition cannot be filed until it is approved. I do recommend that the consulting firm obtain a new Labor Condition Application (LCA) for the new location. When the H1B petition is approved, an amended H1B petition can be filed, attaching the new certified LCA to the amended H1B petition.

The consulting firm can start the green card process through the filing of PERM (also known as application for labor certification) now, as it is an offer of permanent employment in the future and thus independent of current H1B status and, moreover, H1B status allows for intention to immigrate to the U.S. General information is here: www.h1b1.com/laborcert.htm

The priority date of existing I-140 approval can be ported to the new green card case even if the former employer revokes its I-140 petition by sending a letter to the USCIS stating that it has no intention of employing you on a permanent basis. Similarly, you can extend H1B status in 3 year increments beyond 6 years indefinitely based on existing I-140 approval, even if the former employer revokes its I-140 petition. The consulting firm can start the green card process anytime and maintain the priority date noted on the existing I-140 approval notice even if the former employer revokes its I-140 petition.

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

QUESTION: Thank you Mr. Ajay for your prompt response, I really appreciate it. I have another follow up question for my situation, H1B that my company has filled is under normal processing and so does it makes sense to convert it to premium and get approval/rfe or should my consulting go ahead and file for new LCA with client's work location and file fresh H1B and not respond to current H1B application RFE, if i get one, that is under normal processing with USCIS with consultant internal project?

ANSWER: Hi,


First get an LCA certified for the new location. You should seriously consider filing a new H1B petition requesting extension of H1B status through the consulting firm before your last day on the payroll with the current employer. There is a customary 10-day grace period beyond the termination of employment, but the grace period is not guaranteed to be recognized by the USCIS (although it is generally recognized).

The reason a new H1B petition is recommended is that if there is an RFE on the pending H1B petition, the USCIS can deny that petition on the basis that the job described on the H1B petition and the associated LCA filed with the H1B petition at that time is no longer in existence. It is probably OK if the client site is within the same metropolitan area of the original certified LCA, however. There is no need to withdraw the pending H1B petition if your employer files another H1B petition with the new location as well.

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

QUESTION: So my consulting firm has already send an application for H1B transfer with USCIS on 18th Nov based on internal project, but now I have got an approval from Client and so the question that I have here is that

Case: 1
Should I wait for getting an RFE on my H1B transfer application that I already have in place with USCIS for internal project? Should I do premium processing of my current H1B Transfer with USCIS? or

Case 2:
File a fresh LCA now and once it gets approved again file for H1B Transfer? Now if I go with this approach and file my H1B transfer, does it make sense to do it in premium or normal processing? Also while my this H1B is in process, how should I deal with RFE that I will get on my H1B transfer application that is already send to USCIS based on internal project, should i respond to that RFE or just ignore it?

Kindly advise.

Answer
If you wait to get an RFE, and cannot adequately respond to the RFE esp. where it concerns the actual worksite location, the H1B petition will be denied. Then it may be too late to file another H1B petition with the new client location and expect to receive extension of status, since your employment with the current employer will have ended at the end of November. Converting to premium may result in receiving an RFE earlier, and moreover the cost of premium processing is $1,225 payable to Department of Homeland Security.

If filing H1B transfer, it is OK to file through regular processing if filed by end of November, or at least no later than 10 days after Nov. 29 when your employment with the current employer is terminated. You should respond to an RFE received for the earlier filing, if applicable, as there is no disadvantage in having multiple H1B approvals. See www.h1b1.com/concurent.htm  

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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