i140 H1B Extension or Transfer After 6 Years

i140 h1b extension after 6 yrs with current / new company. Use previous employer approved i-140. Without i140, 7th yr extension if PERM pending 365+ days, including Audit.

Written by Am22tech
  By Am22tech      Updated  7 Nov, 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I-140 revoked before approval – You cannot use i140 for extension if it has been revoked by employer before its approval.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Your i140 stays valid if it has not been withdrawn by employer within 180 days after its approval. You can use the withdrawn i140 for as many times as you want to extend or transfer your H1B.

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.

Can we transfer I-140 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.
This means that you will need a new i140 for new employer to file i485 adjustment of status. The good news is that i140 and i485 can be filed concurrently once 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.

Do I need a new PERM and PWD to port i140 date to new employer?

Yes, you do need to file a new PERM, PWD and i140 for new job with new employer.
The PD date can be ported and you can do this process at the time you expect your date to get current.

Use approved i140 from Employer A to port Date with Emp C when Emp B did not file i140?

You can use your approved i140 from employer A to port your GC date with employer C even if employer B did not file i140.
This is a common question when you have changed jobs from employer to B and then thinking of filing H1B transfer with employer C.

Can we Apply H4 EAD with withdrawn i140?

You can apply H4 EAD even if approved i140 was withdrawn as long as the i140 has not been revoked for ‘fraud’ or ‘mis-representation’.


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  201 Useful Questions & Answers

  1. ashok
    ashok 28 Oct, 18 at 3:05 pm

    This is great information. I have specific question. Maybe someone can help me clarify this…

    I have completed 6 years on H1B and I have an approved I140 with employer A, completed more than 180 days. One year back I changed to employer B, basically did a H1B Transfer with Employer B got H1B extension for 3 years. My current employer B is delaying GC process, my current H1B ends in May 2020. If my employer B do not apply for labor by May 2020 can I do H1B extension with Employer B with my approved I140 from Employer A? Or do I need to have labor from Employer B? What are my options? Can I change to Employer C with my approved I140 from Employer A? Please let me know. Thank you.


    • Anil Gupta
      Anil Gupta 28 Oct, 18 at 5:25 pm

      1. Yes, you can do Employer B’s H1B extension in 2020 with employer A’s approved i140. Labor and i140 from Employer B would be required at the time of filing i485 as and when your priority date becomes current.
      2. Yes, you can change to employer C.


  2. Shiva
    Shiva 22 Oct, 18 at 9:51 pm

    Hi Anil Gupta,

    i have an approved 1-140 which was withdrawn by previous employer A after 6 months of validity. My current employer B is in process of applying PERM, and it might take a while to get my i140 approved. If I want to change employer to C, do I have to wait for 6 months after getting my i140 approved from employer B or should I be okay without waiting for 6 months, since date was ported from previous approved i140 through employer A(withdrawn)?


    • Anil Gupta
      Anil Gupta 23 Oct, 18 at 5:13 am

      You should wait for 6 months with employer B’s i140 after approval.


      • Shiva
        Shiva 23 Oct, 18 at 8:27 am

        Thank you Anil


        • Anil Gupta
          Anil Gupta 24 Oct, 18 at 9:11 am

          You are welcome.


          • Shiva
            Shiva 14 Jan, 19 at 9:47 am

            Hi Anil,

            Can my employer B file for an H1B extension on my previous withdrawn i140(Worked more than 6 months after approval) and get approved?


            • Anil Gupta
              Anil Gupta 14 Jan, 19 at 10:04 am

              Yes, employer B (or any other employer) can file for H1B extension based on approved i140 from Employer A.


              • Shiva
                Shiva 9 Feb, 19 at 10:03 am

                Thank you Anil for quick response.


  3. srikanth k
    srikanth k 11 Oct, 18 at 1:51 pm

    Hi Team, i have a question, please help me
    i have an approved I-140 with my previous employer A, and he withdrawn it after 6 months of validity. which is on May 2015.(i came to know about this later)
    My current employer B did an extension and by June 21st 2018 i finished my 6 years of h1b. i dont have my I-140 with my current employer B, but i do have my perm labor approved on August 5th 2018. My current employer B applied for extension (after 6 year) based on my previous i-140(which is done by Employer A) and i got an RFE last week(Oct 5th ) for that, can i get my extension based on my approved perm labor with current employer B?? my current employer B is about to apply I-140.


    • Anil Gupta
      Anil Gupta 11 Oct, 18 at 2:41 pm

      1. Employer B can file H1B extension for 1 year at a time using approved PERM.
      2. Employer B can file H1B extension for 3 year at a time using the i140 approval.
      3. Employer B can apply for i140 in premium processing and get result within 15 days and then file 3 year H1B extension after 6 years.


      • srikanth k
        srikanth k 11 Oct, 18 at 5:02 pm

        Thanks Anil.


  4. Raja
    Raja 28 Aug, 18 at 9:40 am

    Hi team I have a question:

    Was on H1 from 2005 to 2012
    Approved I-40 in 2009
    But the H1-B was denied at the consulate in 2012, Appeal was denied too.
    Currently On a F1 visa in USA and was never out of status in the country.

    Based on the approved i – 140 can apply for a new cap exempt H1-B.

    Thank you for suggestions in advance.


    • Anil Gupta
      Anil Gupta 29 Aug, 18 at 9:21 am

      Yes, you can apply for H1B extension based on pending I-140.
      These questions would need answer too:
      1. Did you ever get your priority date current in last couple of years? If yes, why did you not file I-1485 if it was current?
      2. And is your I-140 still valid?


  5. Test User
    Test User 26 Aug, 18 at 7:06 pm

    I140 is filed but employer doesn’t not share case#

    1. Could I use FOIA to get case# ?
    2. Would a FOIA request affect my chances of 140 approval?
    3. Would the employer know if I filed FOIA request?


    • Anil Gupta
      Anil Gupta 28 Aug, 18 at 4:28 am

      1. You can file FOIA request but I would suggest to wait for i140 approval. That way, you can get the i140 approval copy also.
      Step by Step FOIA process for i140: https://www.am22tech.com/uscis-foia-request-for-i-140-information/
      2. No, FOIA request does NOT affect chances of approval or rejection. FOIA is just a request for information. It does not have any relation to the result of the application.
      3. No, employer is not informed about the FOIA request.


  6. Khajur
    Khajur 16 Aug, 18 at 1:08 pm

    I have an approved i140 which was approved 2 years ago and completing my 5th year on H1 soon.
    I am planning to return to india.

    Can i use the existing i140 in future if i want to come back to US for another employer after sometime?? Basically can the new employer get approval for 3 years ??


    • Anil Gupta
      Anil Gupta 16 Aug, 18 at 1:29 pm

      Yes, you can use approved i140 to apply for 3 year H1B extension in future.
      Make sure your current employer does not revoke your i140 though, when you return to India.


  7. Jai Ho
    Jai Ho 15 Aug, 18 at 2:10 am

    H1B maxed out, hence returned to India in May 2018.
    140 got approved in July.
    Currently on ‘leave of absence’ with my employer as they do not have any projects/offices here in India.
    Hence, no salary.

    Q: Can I apply now for other employers from India so that they can then file my extension for 7th year?
    Q: Do I need to be on payroll with current employer who got my 140 approved so that I can wait for 6 months to retain my priority date? Or the 6 months is just calendar days regardless whether I am actually working through them, being paid, etc.

    Please advise.


    • Anil Gupta
      Anil Gupta 15 Aug, 18 at 7:21 am

      1. Yes, any employer can use your approved i140 to file for your H1B extension for 7th year.
      2. 6 months is usually counted as calendar days. It is not necessary to keep working for the i140 employer but is usually recommended. Since, you are not is US, you obviously cannot work for the employer. So, this should not be an issue.
      But, remember, if you join a new employer before 6 months of i140 employer AND your i140 employer withdraws your i140, you will NOT be able to port your priority date to new employer.
      So, it is recommended that you wait for at-least 6 months before you move to new employer OR make sure that your current i140 employer does NOT apply for i140 withdrawal.


  8. indian
    indian 6 Aug, 18 at 3:31 pm

    One of my friend transferred successfully, to employer B from employer A. Her 3 years visa is about to expire and applied extension with B. will there be any effect or denial of Extension now, if previous h1b is revoked after she left A about 2 years ago?


    • Anil Gupta
      Anil Gupta 6 Aug, 18 at 5:59 pm

      No, there is effect of previous employer’s H1B withdrawal on new one.
      Do you mean the I-140 revocation by employer A or H1B withdrawal?
      Neither one has any impact on employer B’s extension now.


  9. Aughlin
    Aughlin 24 Jul, 18 at 11:14 am

    Just 12 months left on my H1B (in higher education)(36+24 months used).. If I move to another employer does my H1B start a new 3 years with them?


    • Anil Gupta
      Anil Gupta 24 Jul, 18 at 11:49 am

      No. You can use only total 6 years at a stretch including any number of employer changes during that period.
      To get 7th year extension and beyond, you have to have either PERM applied and pending for 365+ days or have your i140 approved.

      If not, then, the only option is to go out of USA and stay out for at-least 365 days and re-apply for new H1B lottery quota.
      You can off-course move to any other non-work visa type like F1 if you want to stay in USA.


  10. Star
    Star 6 Jul, 18 at 8:50 am

    Please comment on
    I-140 approved, H1B transfer(visa expired 5 yrs back) and then H1B Extension beyond 6 year from India?


    • Anil Gupta
      Anil Gupta 6 Jul, 18 at 9:20 am

      It depends on how much time have you already used on your H1B. How much time were you in USA on H1B visa?
      Also, when was the first H1B approved?


      • Star
        Star 8 Jul, 18 at 11:54 am

        I have used all the 6 yrs while I was in U.S and then came back to India.


        • Anil Gupta
          Anil Gupta 8 Jul, 18 at 12:21 pm

          You can try finding an employer who can file for your H1B extension based on I140. Are you sure your I140 is still valid?
          Has your GC priority date been current in recent past?




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