i140 H1B Extension or Transfer After 6 Years

Written by Anil Gupta
  By Anil Gupta          Updated  9 May, 19
  201    


You can file H1B 7th year extension with approved i140. I-140 petition is filed by your employer and is the 2nd step in a 3-step process for employment based green card.

You can request i140 information directly from USCIS if your employer is not sharing it.

i140 application can get approval within 15 days if filed in premium processing. The regular processing may take up-to 6 months based on USCIS service center work load.

H1B Transfer with i140

#1 I-140 Pending

You can file H1B transfer while your i140 is pending approval.

I-140 petition is for a future job with Employer A and hence, unless I-140 is explicitly revoked by your Employer A (current employer), the petition remains valid and will reach a decision stage some day.

You can do H1B transfer and can start working with Employer B anytime during your i-140 is pending.

#2 I-140 Approved

You can file H1B transfer with approved i140 and get 3 year extension after 6 year quota.

Your employer A can revoke the I-140 if 180 days have not passed from the date it was approved.

You can use your I-140 priority date to port to new employer B.

Employer Revokes I140 after H1B Transfer

I-140 revoked before approval – You cannot use i140 for extension if it has been revoked by employer before its approval.

I-140 revoked after 180 days of approval – You can use the approved I-140 to maintain your priority date with new Employer B by filing new PERM and I140.

I-140 is approved and NOT revoked by Employer A: You can use the approved I-140 to maintain your priority date with new Employer B by filing new PERM and I140.
You can join Employer A as and when your Priority date becomes current and file your I-485 for green card.

If your Green card priority date from EB2 is current in EB3 chart, you can file EB2 to EB3 downgrade by filing a new EB3 i140 using EB2 PERM.

I140 Withdraw vs Revoke – 180 Days

Your employer can withdraw your i140 once you leave them. USCIS allows porting your green card priority date to new employer with new AC21 rule modification done in Jan 2017.

Your i140 stays valid if it has not been withdrawn by employer in 180 days after its approval.

USCIS only revokes i140 if they find fraud or mis-representation by your employer after 180 days. You cannot use the i140 if it has been revoked.

Employer may request the i140 withdrawal even after 180 days. Do not worry if the USCIS case status shows as ‘withdrawn’ online. You can use the withdrawn i140 to port your date and extend H1B.

I-140 Transfer to New Employer

I-140 is tied to employer and its job offer. I140 cannot be transferred. You can PORT the priority date to new employer B though.

You can also use approved I-140 from old employer to apply for H4-EAD.

Is New I140 Required after H1B Transfer

You can keep using the approved i140 from old employer until your Green card priority date is current.

Example:

Your approved i140 from employer A can be used to extend or transfer H1B to employer B, C or Z any number of times.

You will need a new PERM and i140 only at the time of filing i485 adjustment of status for green card.





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  201 Useful Questions & Answers

  1. Nayana Madhu
    Nayana Madhu 9 May, 19 at 1:44 am

    Hi Anil,

    Could you please review below situation and advise.

    – h1 6th year extension denied in 2018, and out of cap H1 petition was later filed same year from India.
    – i140 was approved on Apr 2019.
    – Waiting for the result of OOC h1 petition. In case this petition is also denied, can the approved i140 be used by the same employer for an out of cap H1 petition to request a 3 year period, since 6 year is not maxed out yet. Or that would need to be a in-cap petition next year?

    Thanks

     

    • Anil Gupta
      Anil Gupta 9 May, 19 at 5:34 am

      You can request out of cap H1B extention using approved i140.

       

  2. MBAH1B
    MBAH1B 8 May, 19 at 1:21 pm

    Hello Anil,
    The information you provide is great and thank you for your help!

    I have an I-140 approved in 2016 with employer A with a technical SOC code. I’m on the last year of my H1B and the extension is in process with employer A.

    I graduated with an MBA and employer B is the process of applying for the transfer, the SOC code with employer B is business related and hence will be different from the one on my I-140! Will there be any issues with the transfer? Will the new MBA degree be a good proof to validate the transfer?

    The AC 21 rules for SOC are very vague, can you please help me understand!

    Thanks

     

    • Anil Gupta
      Anil Gupta 8 May, 19 at 4:24 pm

      The chances are high that you won’t be able to use i140 under AC21 as your job description for MBA job will probably not match with older one.

      Your attorney should be able to guide you by looking at old and new i140 job descriptions.

       

      • MBAH1B
        MBAH1B 8 May, 19 at 4:45 pm

        Thanks! I am not expecting to Port the priority date, the employer B will do a new PERM anyway. I just would like to know if transfer is feasible.

         

  3. Alan
    Alan 4 May, 19 at 8:56 pm

    Hello Anil,

    Thank you for helping us out! Can you please help with my situation?

    1. I-140 got approved in Nov. 2016
    2. H1B renewal got denied in Nov. 2018 (first 3-year extension after 6 years), and I had to leave the US in Nov. 2018 as my I-797 and I94 expired. My company A’s policy is that I have to wait for 6 months until they file a new work visa for me
    3. Now I’m working on an international assignment in my home country China and it’s already 6 months but I’m concerned my company A might not file a new work visa for me
    4. I’m interviewing with company B (US company in California) while I’m in China

    My questions are:
    1. company B can file an H1B transfer AND extension as I have an approved I-140? (eligibility and feasibility?)
    2. Since my I-797 expired already, can I only start to work for company B when the transfer/extension is completed? Or, immediately after they initiate the transfer/extension petition?
    3. based on the current pace, my priority date may become current in 1 year. if I cannot file 485 when it becomes current, how much additional time I have, online research indicates I have 1 more year.

     

    • Anil Gupta
      Anil Gupta 4 May, 19 at 10:53 pm

      Company B can file H1B Transfer for you using approved i140.

      You can only enter US once you have H1b Transfer approved and have got the H1B visa stamp.

      If your priority date becomes currrent, you have to file i485 within 1 year of date getting current. Your new employer will need to file new PERM and i140 for you.

       

  4. H1BUser
    H1BUser 30 Apr, 19 at 10:03 am

    Hi Anil,

    Thank you for the helpful post. I have completed my 6 years, and my employer filed I-140 more than year back, and still pending.
    But my H1B got approved for next 3 years until 2021, based on pending I-140.(My new h1b approval does not have alien number, so my I-140 must be still in pending) I don’t have the I-140 receipt number too, my employer is not sharing it. Now i want to change the employer, what information is required for H1B filing based on my pending I-140 by old employer. My new employer is willing to reprocess the PERM and I-140 again, after I join them.

    Any help in this regard is greatly appreciated thank you.

     

    • H1BUser
      H1BUser 30 Apr, 19 at 10:12 am

      FYI. I have requested for the I-140 details from USCIS using FOI act in Oct, and still waiting for it.

       

      • Anil Gupta
        Anil Gupta 30 Apr, 19 at 5:10 pm

        I think your i140 is already approved as you got 3 year approval.
        If i140 is not approved, your employer can only request 1 year extention after 6 years are completed.

         

        • H1BUser
          H1BUser 3 May, 19 at 11:33 am

          Thank you Anil. Then My H1B approval should have Alient number right, but I don’t have that.
          Without I-140 receipt, can we switch to the employer? In my case, what options do i have to switch?

           

          • Anil Gupta
            Anil Gupta 3 May, 19 at 12:12 pm

            Your employer can withdraw your i140 if you leave them before 180 days of i140 approval and then, you won’t be able to use it for H1B transfer of extension.
            So, be careful.

             

  5. pal
    pal 16 Apr, 19 at 9:43 pm

    I had i-140 approved 2 years ago with employer A (in 2017 ). Changed to employer B in 2018 august with H1B approved and didn’t initiate GC process yet. Employer A withdrawn my i-140 after I left (after 2 years of approval)
    1. Now I got new offer from Employer c, Can i use i-140 from employer A (which is withdrawn) to transfer H1B to Employer C ?
    2. Or is it only valid for date portability ?

     

    • Anil Gupta
      Anil Gupta 17 Apr, 19 at 7:15 am

      You cannot use revoked i140 to extend H1B beyond 6 year or port your GC date.

       

      • pal
        pal 17 Apr, 19 at 8:16 pm

        As per new AC21 rule, you mentioned employer can’t revoke i-140 after 180 days, but he can withdraw. is that correct ?

         

        • Anil Gupta
          Anil Gupta 17 Apr, 19 at 8:29 pm

          Yes, that’s correct. What status does it show online on USCIS website?
          It is withdrawn or revoked?

           

          • pal
            pal 17 Apr, 19 at 8:29 pm

            revoked. checked with employer A, he said they sent withdraw notice to uscis 2018 November

             

            • Anil Gupta
              Anil Gupta 17 Apr, 19 at 8:37 pm

              If it is revoked, then you may not be able to use your i140.
              Check with your attorney to see what can be done.

               



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