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Immigration Issues/H1B to H4 to H1B; I-140 PERM approved

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Question
Hi,

My situation:
- I have been in the US for more than 6 years.
- My current employer filed I-140 and PERM for me in 2012 (approved in Nov of 2012, with priority date of March 2012 - EB2 India).
- In Nov 2013 my H1-B extension was filed.(H1-B petition was approved, with validity until Oct 2016.)
- I was laid off last week(Sep-12-2014), and my employer says that he can hold my H1-B until 26-Sep-2014 (after which he intends to revoke it).
- My spouse is holds an H1-B with different company.

My Questions:
- Can I move as my spouse's dependent (H4) to maintain status ? If so, when should I apply for the COS - Immediately, or wait until my employer revokes the H1-B ?
- Suppose that I am offered a similar position about 2 months after I move to H4, will I be able to use the "receipt number" for activation of the H1-B that was earlier approved for me ?
- If the answer to previous question is Yes, up until what time will I be able to re-activate the H1B ? Are there any conditions attached to the reactivation process ?
- What happens to the approved I-140 ? Can I ask my prospective employer to use the case/ receipt number for I-140 as well ?

Please advise if I have missed some point apart from these questions.

Thanks,
A_B

Answer
Hi,

You should immediately file for COS to H4. Termination of your employment is violation of H1B status even if the employer does not formally revoke its H1B petition.

Another employer can file an H1B petition for you in the future requesting change of status from H4 to H1B. You will need to wait until approval before commencing employment with the new employer. The H1B petition will not be subject to the visa cap.

The new employer will need to start the GC process from the beginning (PERM and then I-140) but you will be able to maintain your earlier priority date even if the previous employer revokes its I-140 petition.  

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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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