Hi my wife (Indian citizen) received her H1b extension beyond 6 years for 3 years (valid till june 2018) using approved EB2-I140. We want to change to H4 due to personal matter. Can she change back to H1b after 1 year. How much time she will have on that H1b extension (3 years or 2 years). Can she change employer and will her new emploer have to file perm and I140 again. Her EB2 is not current. My main concern is related to how much time she can get on her new H1b (will it be june 2018 or june 2018 + time spent on H4). Your help is greatly appreciated
Tricky. By the time she'll want to "change" there'll be no more approved I-140, since by that time the employer will want to revoke it, upon advice of counsel. With no more approved I-140, but still 2 more years left on her old H-1B, hopefully she will still be considered "cap exempt" when a new employer files a brand new petition again, but I have my doubts.. A new employer will of course need to file a brand new PERM and I-140 but she will be able to recapture and reclaim her old PERM's priority date. At least will be able to continue working on her H-4 based EAD, but to continue doing so will need to make sure H-1B principal spouse maintains valid H-1B status himself.
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All of these quesitons are great when discussed with the employer's or a private attorney on a consultation. The answer is yes but. The but is coming of course because the employer might revoke the I-140 in which case there will be no more chaning back to H1B.
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I agree with both colleagues as it is a tricky proposition that must be discussed and answered by the employer counsel handling the matter.
If she plans to quit this employer, they may not be interested in continuing with the GC process. You may want to discuss upfront or discuss a sabbatical.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.
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