Changing Employer and Impact on EAD for H4 After Approved I-140 is Revoked

Raghuram Sukumar H4 Visa 42 Comments

i140 revoked ead for h4

Question from a reader about Approved, I-140, H1B Visa, H1B Extension, EAD for H4 and change of employer.

Question :

Need quick help. I am on H1B.  I have my I-140 approved in 2012.  The priority date is July 2012.

I will complete 6 yrs on H1 in September 2014, and have already gotten the 3rd extension approved for next 3 years.

My question is as follows:

I have a job offer from other company, who is willing to transfer my H1 & apply for my green-card.

I understand, I my lose my priority date or may be able to carry forward once the new I-140 is approved. And it may take another 12-24 months to get new I-140.

If I change job now, would my wife be able to apply for EAD if this rule is passed? (I am sure existing company  will revoke my current GC application and new one will be in process to get labor n PERM approval).

Please help, I have to make a quick decision about this new job offer.

 

Basics of Green Card Process

Here’s the basic overview of Green Card Process which involved 3 steps

  1. PERM Labor Certification
  2. I-140 Application
  3. I-485 Application.

You can read this detailed article to understand the processing time for each stage : Green Card Steps for EB2 and EB3

H-1B visa is typically approved for initial period of 3 years.

Then employer can file an application to extend it by another 3 years.

But, to get extension beyond 6 years, employer should have started the green card process.

After employer started the Green Card Process, depending on the processing stage ( PERM, I-140, I-485), you are eligible to apply for 1 year or 3 years H-1B extension.

Person who posted this question have I-140 approved (Stage 2). So, he’s can get 3 years H-1B extension in addition to allowed initial 6 years H-1B period.

Approved I-140 and Change of Employer

Now, the question is what happens if you change the job from Company A to Company B, where the green card process was started by Company A.

When you read the question above, following was mentioned

I am sure existing company  will revoke my current GC application..

What does that mean?

Basically, the person is asking if his position in the Green Card Queue will be lost when employer revokes I-140.

Remember : Green Card is allocated based on Priority Date.

This person’s Priority date is in July 2012.

If the new company starts the process again, it may be possible to re-use the same priority date ( even if I-140 is Revoked) by previous employer. Talk to your immigration attorney on this.

EAD for H4 when I-140 is Revoked

If I change job now, would my wife be able to apply for EAD if this rule is passed? (I am sure existing company  will revoke my current GC application and new one will be in process to get labor n PERM approval).

I guess, you should know by know that spouse of H1B workers don’t have work authorization.

Obama Administration is trying to fix that, EAD for H-4 is approved. Here’s how you can apply for EAD for H-4 Visa.

Now let’s relate that to this person’s context of changing jobs.

If old company revokes I-140 then there is no active I-140. So, you are likely have to wait till new company’s I-140 will be approved.

When EAD for H4 Rule is implemented, then your spouse would have to wait till your I-140 from your new employer is approved by USCIS.

As you said, it can be a couple of years from now, before your I-140 will be approved.

 

Changing Jobs after I-140 Approval

There are new H1B folks here and my guess is that your knowledge is limited on what is going to come next with respect to Green Card Process.  I wanted to make use of  posted question to provide a top-level view of what to come.

This EAD for H4 is not available for all H4 spouse’s. Which means, if a H1B worker gets married and wife comes to America on H-4 visa, this rules doesn’t provide them with work authorization.

  • For a student in F1 and OPT, the immediate need is a job, followed by H-1B Visa.
  • For IT worker outside USA, the immediate need is a H-1B Visa to come to USA.

It’s only after you get into intricacies of H-1B you will know  the limitations.

Now, what would I do, if I were in this person’s situation?

Since the rule is so close to be being implemented or at least it looks like that, I wouldn’t change the employer.

Plus, if I’m certain I-140 will be revoked, I will stay put.

But, I don’t know the circumstances under which you are changing employer. If you are not forced to find  a new job and company, then why not stick around for few more months?

If you are getting pay increase with new job, you can ask this question :

Which is more important : Your wife’s work authorization or  20% Increase in Salary/better job?

Questions:

Do you have any follow-up questions about this entire H-1B to green card process or I-140, EAD for H4?

See Related :  FAQ’s About EAD for H-4

Comments

  1. Hi Raghuram

    I applied for my H4 extension and H4EAD (first time ) in JULY 2016 and it got approved in Apr2017
    In between I got the approval for H1B – OCT 2016, so my status got changed from H4 to H1B

    Now I want to move back to H4, I need to file COS from H1B to H4 or going out of country ( whichever is fast)

    but what will happen to H4 EAD? can I utilize the previously approved EAD ? or I need to apply again? Please let me know your thoughts

    Thanks

  2. Currently, I am employed for Employer A and my I-140 is in approved status. Planning to change my employment to Employer B. Soon after joining Employer B, Employer A
    would revoke my I-140 and Employer B would start my Green Card processing after 6 months of joining.

    1. When Employer B files for Green Card Petition, whether my earlier Priority Date (Employer A’s PD) can be ported?
    2. This question might be repetitive. However, in most of the forums does not have common answer to this question. Is there a rule / web reference, which has complete
    information about this topic?

  3. My wife got her H4-EAD card last week. I have a job offer now, so wanted to know what happens if I change my job now? Will H4-EAD get revoked? Please let me know. Thank you!

  4. Hi Raghuram,

    Thanks for the informative post.
    Now that the rule is passed, please clarify whether my wife is eligible to apply for H4 EAD.

    1. I have an approved I-140 from previous employer
    2. H1b is with new employer and not yet started GC process with new employer

    Thanks,
    Ravi

    1. Hello,

      This information is very good. I also have same questions as Ashok.

      1. Currently on H1B. Considering changing employer since my EAD is approved, underlying 1-140 is approved. Would this be safe? Or should I just wait until GC? Visa numbers now have retrogressed and no telling when GC will be received again.

  5. I am on H1B with Employer A – If I apply for an EAD for my spouse who is on H4 based on the new rule, what would be the impact on my spouse’s EAD if:
    1> I transfer my H1B to Employer B while my spouse’s EAD application is in process
    2> I transfer my H1B to Employer B after my spouse’s EAD application has been approved

    1. Author

      Ramesh – You need to consult an attorney for this 🙂

  6. 1. I have Approved I-140 from employer A dated Jan 2015.
    2. Say If my wife gets H4 EAD using that approved I-140
    3. After that when I join employer B and employer A withdraw (not revoked)
    my Approved I-140
    4. Will the approved EAD will be valid till the approved date or it will be immediately get invalid because I-140 withdrawn by employer A ?

    1. Author

      I don’t think USCIS answered that scenario. We have to wait for more clarification from that. They are going to release FAQ’s before May 26, 2015

      1. Hi there,

        Is there any update on this question?

        1. I have Approved I-140 from employer A dated Jan 2015.
        2. Say If my wife gets H4 EAD using that approved I-140
        3. After that when I join employer B and employer A withdraw (not revoked)
        my Approved I-140
        4. Will the approved EAD will be valid till the approved date or it will be immediately get invalid because I-140 withdrawn by employer A ?

        Thanks very much!

        1. Author

          You would have to read the H4 EAD rule to understand that or talk to an attorney to get calrification.

  7. This new law clearly shows how laws should not be created. First USCIS has chained employees to companies by H1B and 140 laws. Employees cannot change job, have to stick with same companies till EAD or green card comes through.
    What is the meaning of approved 140 if once approved it cannot be considered as approved . Why 140 is made company specific and then you have to hear from employers that they will withdraw, revoke. Nothing is employee friendly.

  8. Changing Employer and Impact on EAD for H4 After Approved I-140 is withdrawn (not revoked).

    1. I have Approved I-140 from employer A dated Jan 2012.
    2. Say If my wife gets H4 EAD using that approved I-140
    3. After that when I join employer B and employer A withdraw (not revoked)
    my Approved I-140
    4. Will the EAD will be valid till the approved date or it will be immediately invalid because I-140 withdrawn by employer A.

  9. Hi Raghu,

    Your website is doing a good job here and I appreciate your efforts.

    I have a confusing situation here. I have approved i140 with employer A. I have joined employer B that will take atleast 6 months to start GC process. Meanwhile employer A agreed not to revoke the approved i140 immediately. (May be after 3-4 months). Now here is my doubt:

    1. What happens if he revokes the i140 after EAD is applied on/after 26th May but EAD has not yet approved?
    2. What happens if EAD is approved and then he revokes i140 later?

    Please let me know.

      1. Is this new H4EAD rule brought to ease some burden on H1B candidates or to tie their H4 spouses to same company. Where is the easing of burden. Either free up H1B person to port 140 to any company without having to go through PERM again because USCIS has record of atleast one 140 approval or free up H4 EAD from the 140 condition.
        In any case this law has so many loop holes and does not help any one.

  10. Hi,

    My case,
    1. I-140 approved with old company in 2011.
    2. Switched to new employer after 6 years on H1B and got 3 years ext.
    3. Old employer going to revoke my I-140 but I am on H1B for more than 6 years.

    So can my wife who is on H4 can apply for EAD ?

    1. I found this document from Federal register published on 02/25/2015 and as per this document, who ever moving companies might loose H4 EAD and must reapply the EAD once they get I-140 through their new comapny. Ref: Page 30 of the above linked pdf. Its is almost clear from this section we cannot apply for EAD based on on PERM from new company even if we have I-140 approved from last company.

      1. Also it appears if you transfer H1b based on AC21 then u will be able to retain/reapply EAD…

      2. This so laughable. You have approved 140 from a company, you cannot seek better job because of the fear that 140 would be withdrawn or revoked. Then you tie H1 EAD to approved 140 which means you tie the spouses also to the same company. So how is US givt easing the burden of H1B candidates.
        Either make 140 portable from one company to other without having to go through perm again or don’t tie H4 EAD to 140.
        Law has so many loopholes.

  11. As pointed by others and many forums please correct this misleading article. “PRIORITY DATE CAN BE RETAINED EVEN IF I140 IS REVOKED” (UNLESS I140 WAS MISTAKENLY ISSUED OR REVOKED DUE TO FRAUD).

    So my advise to your first reader would be not to worry about changing jobs unless the reason for revoking his I140 was fraud/mistake.

    Himalay

  12. Hi Raghuram, EAD for ‘certain’ H4 spouses is much talked about all over now. Buy, My question is regarding – EAD for ‘certain’ H1-B Skilled workers. is this proposed in EO?

  13. Hi, My 6 years in h1 is about to expire and i plan to move to h4 by this month end(July 2014 end). my husband has a approved I-140

    1. Seems like it would be Nov end by the time i get my h4.if this rule gets passed meanwhile , can I apply for ead based on a pending h1 to h4 application. The reason I ask is I know I have to wait another three months or so to get my ead card. hoping they allow for concurrent processing of ead and h4

    2. Since ive already used up 6 years in H1, would it impact by ead in any way?

    Appreciate if you can provide your thoughts on my situation

  14. Along with approved I 140 it also specifies about “H1 who have used their AC21 for their extension” so am hoping they would allow H4 EAD for people who got 3 year extension with an approved I 140 but dont have a valid one currently.. this is just my speculation.. lets see when and how this comes out…

    1. Please note tht an I-140 petition which has been approved and on file for at least 180 days – an employer’s loses the right to withdraw an I-140.

      1. this is not fully correct. employer can revoke even after 180 day if that one is not filed for I-485 (GC after reaching the priority date) .

  15. Please keep in my everyone, who are trying to change employers after I140 Approved that employer will revoke there petition..it wont happen most cases because as per uscis “USCIS will revoke petition only if the petition is by mistake or fraud”. Most of the employer cannt prove that petition is mistake or fraud.
    Please take to attorney before making any assumption by yourself.

    1. Hi Raghuram, in addition to Anusha’s case, if H1 is transferred is to new company(H4 included), will it still be possible to get EAD for H4 from old company’s I140 approval?. Please share your thoughts

        1. I think the new proposed rule also is applicable for people who have already extended their H1 past 6 yrs based on pending labor or i140.

  16. Continuing with the thread, if the Employer does not revoke the I-140 would the H4 dependent be eligible for EAD in case the law gets passed?

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