Q & A: H-1B portability after the 6th year; priority date recapture

Question:  Hello, can you please provide me some guidance on my H-1B scenario? I am working on H-1B since October 2004. My current company filed for my green card and my I-140 petition is approved, with a priority date in January 2009.  I have recently been approved for H-1B status beyond my 6th year, valid to July 2012.  Now I want to know what are my options if I want to move from this job/company?

1. Can I change companies on H-1B now? If so, would I get a 3 yr or 1 yr extension?

2. Do I need to take a break from H-1B status and wait for a year before I can file for a new H-1B? Or can I apply when the H-1B quota opens again in April 2011?

3. Would I retain my GC priority date if I change jobs?

Please find RWG answers after the jump.


Question 1: Can I change companies on H-1B now? If so, would I get a 3 yr or 1 yr extension?

RWG Answer: Yes. Agency memos clearly state an H-1B worker can rely on I-140 approvals from prior employers to get THREE year extensions, under 104(c) of AC-21. However, if the I-140 is withdrawn, these memos are less clear, and you need to be careful.

Question 2: Do I need to take a break from H-1B status and wait for a year before I can file for a new H-1B? Or can I apply when the H-1B quota opens again in April 2011?

RWG Answer: If you are now in H-1B status, you are not cap subject and therefore not required to wait for April 2011. In other words, if you find a new job, you may “port” now. If you send me an e-mail, I can send you some more information about H-1B portability. This should help you understand the process, timing and cost involved and prepare for the immigration component of your job search.

Question 3: Would I retain my GC priority date if I change jobs?

RWG Answer: Possibly. Your new employer would have to file a new labor certification (PERM) application on your behalf and then file another I-140 petition, at which time you would seek approval of the I-140 AND ask to re-capture (or retain) your old priority date.

Best of luck in your job search and don’t hesitate to contact me for the portability information, or if you have questions once prospective employers come into view.

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