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Expert James
Expert James, Immigration Attorney
Category: Immigration Law
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My I-797 with my current employer is expiring on 26 Aug 2013.

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My I-797 with my current employer is expiring on 26 Aug 2013. They just filed my extension few days back to get 3
more years as i would be completing my 6 years of H1. My questions over here is

If my case gets declined after 26 aug , can i file for H1 transfer (using approved I-140) through employer B?
If not, what do i need to do for that? Will i be required to exit and come back. I took 3 weeks of vacation
sometime back in 2008, can i use it towards over stay? what would be my options in that case.

Also, I am filing for 485,EAD,AP through company A who is my current employer. At the same time, my perm is
getting filed with another company B, will this be a problem in anyway?
Thank you for using this service. I'll do my best to answer your questions as completely and honestly as I can. All I ask in return is that you give me a positive rating for my customer service. This is the only way I get credit for assisting you. If you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further. Please remember that the law sometimes does not have a satisfactory solution for your issue; unfortunately, this is something I cannot control.

If my case gets declined after 26 aug , can i file for H1 transfer (using approved I-140) through employer B?
ANSWER: No. First, I should address the common mistake that there exists no such thing as a "transfer" of H1B. Many people mistakenly refer to the process of changing employers as a "transfer," but that is a term that does not exist under immigration laws, when referring to H1B. The technical process is collectively referred to as an "extension," even though what you really are doing is going to another employer.

Having that in mind, the same issues apply to changing employers as doing an extension - a person cannot extend his status if he has no status from which to extend.

Therefore, if, after August 26, 2013, your H1B extension was denied, then you have no status from which to change employers ("transfer") and you cannot go to another employer.

QUESTION: If not, what do i need to do for that? Will i be required to exit and come back.
ANSWER: Yes. You cannot extend (or "transfer"/change employers) if you have no status from which to do that. Once thing you might consider is having company B file the change of employer H1B. But there is a risk - if both are approved, then whichever action was last taken by the USCIS is the employer with whom you are supposed to be working. So if you truly don't want to leave employer A, I would not risk doing the concurrent H1B with company B.

QUESTION: I took 3 weeks of vacation sometime back in 2008, can i use it towards over stay?
ANSWER: You can't use it towards "overstay," but you could have requested an extension of H1B for 3 weeks by recouping the time you spent outside the US while H1B employed. That time you can get back on the end of your current H1B. It should have been requested with the request for an extension.

QUESTION: I am filing for 485, EAD, AP through company A, who is my current employer. At the same time, my perm is getting filed with another company B, will this be a problem in anyway?
ANSWER: I'm not really sure I understand why this would be a problem. I might be missing something, but you can have two employers pursuing a green card based process on your behalf, and it can be done while also on H1B. Also, the PERM is for a future job offer, not a current job, so it doesn't matter to PERM that you are seeking H1B with two totally unrelated companies.

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Customer: replied 3 years ago.

So if my case gets declined after 26 aug, but what time do i need to leave the country.Is exiting the country the only option left for me at that time?

There is no such thing as a "Grace period." That means you should leave immediately, but the USCIS generally overlooks about 10 days, to allow an alien to tie up what ends need typing up, prior to departure.

Yes, unfortunately, it appears that this is your only option.

Note that if you still have not received an answer by August 26, 2013, you can continue with your employment for up to 240 days. But once you've gotten the result, it's time to start preparing for departure.

I hope I have answered your questions. Keep in mind that I only get credit for my work if you rate me positively. If you're satisfied with my answer and my professionalism - not the outcome or the state of the law which I cannot control - please select a top-three rating. Again, if you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further. Remember that the bottom two negative ratings are used for Experts or professionals who are rude and/or bad at their job, and I'm confident you'll find me to be professional and truthful with you.

A bonus is appreciated, if you feel I've earned it.

If you want me to answer questions in the future, you can write "FOR LONGHORN" at the beginning of your question, or go directly to my question page here: Ask Longhorn Lawyer

Thank you!
Customer: replied 3 years ago.


Can i do a trick here, apply through employer B before 26 Aug, if i get approval through my current employer then withdraw my extension through employer B. Is this possible, do you see any risk over here?

I would not refer to it as a "trick." This implies that you are trying to circumvent normal and appropriate immigration laws, rules and procedures, which is a violation of immigration law. And I cannot advise or encourage you to do so.

If you are asking whether a second employer can petition for an H1B on your behalf, based on the approved I-140, the answer is yes. I believe I mentioned that previously. If you decide later that you no longer want to continue on that path, your employer is free to withdraw that petition. But again, remember the risks I mentioned previously as well, which are if employer B is approved after employer A, then you are employed with employer B. If employer B is approved before employer A, then you are with employer B, until employer A gets approved, at which time you would have to go back to employer A. If employer A is approved, then employer B is approved, but you want to work with employer A, then employer A must file another petition to get you back.

I hope I have answered your questions. Keep in mind that I only get credit for my work if you rate me positively. If you're satisfied with my answer and my professionalism - not the outcome or the state of the law which I cannot control - please select a top-three rating. Again, if you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further. Remember that the bottom two negative ratings are used for Experts or professionals who are rude and/or bad at their job, and I'm confident you'll find me to be professional and truthful with you.

A bonus is appreciated, if you feel I've earned it.

If you want me to answer questions in the future, you can write "FOR LONGHORN" at the beginning of your question, or go directly to my question page here: Ask Longhorn Lawyer

Thank you!
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