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KJL LAW
KJL LAW, Lawyer
Category: Immigration Law
Satisfied Customers: 1623
Experience:  Attorney at law Office of KJLLAW
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Approved I-140, H1b application approved. Change of employer

Customer Question

Approved I-140, H1b application approved. Change of employer leading to revokation of I140 and H1b, What is the impact?
Submitted: 1 year ago.
Category: Immigration Law
Customer: replied 1 year ago.
I have I140 approved and H1b approved (3 years). My employer said that in case I do not perform well in my new position my would not be confirmed as a permanent employee and therefore organization will revoke my I140 and H1b visa. What are my possibilities to continue working in the states? 1. Can I get my H1b transfer? 2. What happens if my H1b gets transferred and my H1b by current employer is revoked? 2. Can I in any way retain my priority date? 3. Can my transferred H1b survive when I-140 is revoked by current employer?
Customer: replied 1 year ago.
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Expert:  KJL LAW replied 1 year ago.

Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

Your new employer's petition must have been filed (receipt date) before your last day at work with the old employer or otherwise it may get approved without your I-94. In that case you will have to leave the US and return with H1B Visa in order to work for the new employer.

Please feel free to ask me any additional questions that you may have with regard to this matter.

Please rate my service for credit and tracking, so I will receive credit and payment for my work. It was a pleasure assisting you today, and I would appreciate if you would rate my service, and after you rate the question you can ask follow up questions.

Customer: replied 1 year ago.
I don't think all my questions are addressed in the response.
Expert:  KJL LAW replied 1 year ago.

Sorry. If they choose to revoke, your only option is to immediately begin making arrangements to either obtain a new job offer or look to other possible visas to remain in the country.

Once a termination of your employment occurs, your H-1B is invalid and you are immediately out of status; there is NO grace period.

You can file an H-1B petition for change of employer (i.e. H-1B transfer) or to file a change of status to another visa type before the termination occurs.

it is crucial to file and get the date stamp for the new H-1B transfer or change of status prior to the company notification to the IRS, because if the employer later notifies the USCIS of the termination or requests withdrawal, it generally would not impact your new pending application or your immigration status. You can retain your priority date on a transfer.

Customer: replied 1 year ago.

Okay. It doesn't address my concerns. please respond to each point below:

Please answer to all my points:

1. Can I get my H1b transfer?

2. What happens if my H1b gets transferred to new employer and my H1b by current employer is revoked?

3. Can I in any way retain my priority date from existing I140?

4. Can my transferred H1b survive even when my I-140 is revoked by current employer?

5. 4. Can my transferred H1b survive even when my current H1b is revoked by current employer?

6. What happens in the case when my H1b is transferred to new employer and I am still working for old employer, which H1b will be valid?

Expert:  KJL LAW replied 1 year ago.

1) You can if you transfer your h1B if you file and get your receipt for the new company (job), prior to the old company sending notification to the USCIS.

2) If it is revoked then it cant be transferred, and you will have to leave the country (at least temporarily), until the new H1b is approved.

3) if it is revoked, it is longstanding policy by the USCIS and Legacy INS, that even following a revocation of the I-140, the priority date still may be retained.

5) yes see above.

6) if your H1B is transferred and you still work for the old employer under that valid H-1B, you will be still considered the employee of the old company. You won't be considered a new employee until the new H-1B is approved and the receipt is issued. You can legally start working for the new employer when you receive the receipt notice.

Customer: replied 1 year ago.

My H1b visa was filed by an academic institution. My I-140 is also filed by an academic institution. Can I now transfer H1B to an Industry based corporate employer? And if they file I-140 GC application again that would be corporate based. Can there be issues based on the visa type (from academia where H1b is filed under non quota category)?

Expert:  KJL LAW replied 1 year ago.
If you never held H1B cap-subject employment, changing jobs to a cap-subject employer requires filing an H1B cap-subject case.This means that you would be subject to the H1B cap timing restrictions when establishing a start date for the new corporate employment.
Customer: replied 1 year ago.
I once did file for H1b under quota. It was approved, but the employer revoked the H1b before it started on Oct 1st of that year. Do you think that covers me and I can get my h1b transferred to corporate industry?
Expert:  KJL LAW replied 1 year ago.
If you worked at a university or nonprofits associated with institutions of higher education, you will not deemed to have already been counted against the H1B cap.So," if your old employers approved petition is withdrawn before the new petition is approved, then you would no longer be considered “counted” under the cap.
Your new petition would be denied for filing outside of the H-1B cap window."
Customer: replied 1 year ago.
Just to make it clear. H1b cap was applied in April 2008, revoked in sept 2000.
H1B academia was filed in 2010, continued till now and approved for 3 years after 2016 based on i140. So the transfer based on I-140 based visa would not be counted under cap and hence if I get my visa transferred to industry 1. Visa transfer would be denied 2. I-140 would be revoked by previous employer 3. New employer can not file I-140 (in any way)?
Expert:  KJL LAW replied 1 year ago.
it would be denied, and the previous employer would revoke and then the new employer could not file for you.
Customer: replied 1 year ago.
Okay I understand that once academia employer revokes h1b / I-140, new employer can not do anything. My point is understanding how the academia and cap based H1b works in this situation. My questions are :
1. Academia H1b continued , industry employer tries to transfer my H1b. Will they get my H1b approval ? (Considering the fact that they are industry and I have academia based H1b , but now this H1b is based on I-140) (also the previous history of my once getting cap based H1b approved but that getting revoked before it even started).
2. Of industry based employer gets my H1b transfer, then will I be eligible to file I-140 through them ? (Background : I am academia employee and they are industry)
3. If they can not file my I-140, will I have to get back to academia before end of my 3 years of transferred H1b? So academia can again file my i-140?
Expert:  KJL LAW replied 1 year ago.
1) no will not get it approved.
2) you as free to change positions as law no as you folllow the prior mentioned rules 3) if they do not file and you are out of status, it expired you will have to leave the country to await the reissuance of a new H1b.
Expert:  KJL LAW replied 1 year ago.

I believe I answered all of your questions, If you have any additional questions, just ask.

Expert:  KJL LAW replied 1 year ago.

If you have any additional questions, just ask

Expert:  KJL LAW replied 1 year ago.

If you have any additional questions, just ask.