H1B and GC related questions


I have few questions about my green card petition. Pls can someone advice.

Situation: My I-140 is approved on 2015. My Priority date is November 2013. My GC was filed in EB2 category. Currently I am in India as my H1-B extension got denied. My employer ‘A’ is not willing to downgrade my petition from EB2 to EB3 to file I-485 now as my PD is current with respect to EB3 date of filing.

  1. If I move to different employer ‘B’, will they do H1-B transfer first based on my existing I140 and then they have to re-file PERM, new I-140 again? OR employer B needs to file PERM, new I140 then apply new H1B? How it works if i switch to another employer?

  2. My employer ‘A’ is suggesting not to file I-485 from India once PD is current. Consular processing with I-824 is not recommendable as per them. As I am in India now, consular processing is advisable OR I have to get a project in USA with new H1B with my current employer ‘A’ and file I-485 from there. Which one is better ? CP from India or I-485 from USA?

  3. Is it worth to switch over to another company from India at this point?

H1B and PERM/GC process are separate. GC is for future job position so can be processed seperate from H1B as far as employer is able to show ability to pay for and job availability for you in future (when your GC will be approved).
Normally employer want you to start working on H1B before they can sponsor your GC.

AOS/I-485 from US is more preferred however there is no downside as such for CP.

I guess that depends on whether you get another company to sponsor your H1B & GC.

Thanks Kalpesh for your prompt response. Any idea if I switch employer now, will they file H1-B as a transfer based on my current I-140 OR it will be a new H1-B? In either case, H1-B will be filed in Cap or Non-cap mode?

This will be new petition and cap-exempt based on your approved I-140

New employer can file h1b as cap-exempt based on approved i140 from previous employer. Good to know. Thanks for your response. Appreciate it.

@Kalpesh_Dalwadi : If I move to new employer in Managerial capacity, can new employer upgrade my petition to EB1 category? OR they will have to file GC from the start using EB1?

Below is the requirement to qualify for EB1C. If below requirement is met, then your employer can file under EB1 which is current at present.

You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer. The U.S. petitioner must have been doing business for at least 1 year, have a qualifying relationship to the entity you worked for outside the U.S., and intend to employ you in a managerial or executive capacity.

Ok. 1 year outside of US in managerial capacity with new employer is fine? Will it be a new petition under EB1 OR they will be upgrading existing petition filed by current employer?

Hi, Can you pls suggest for the above query.

New emploer will need to restart your GC process however you can carry forward your priority date from the prior I-140.
EB1 is presently current for India.

Your new employer will need to file new I140 and if the date is current at that time, you can do concurrent filing for I485/AOS. EB1 do not require PERM so the GC process will be fast tracked.
If the date is not current for EB1 when your employer files I140, you can request USCIS to port the old I140 priority date in the new I140.

Thank you so much for your input. Appreciate it.

Hi @Kalpesh_Dalwadi - Hope all is well with you. I have one follow-up question here. I have submitted resignation with my current employer ‘A’. Employer ‘A’ is asking me to surrender all immigration petitions to them. If I surrender I-140 (approved already) to them,

  1. employer ‘A’ would revoke my approved I-140?
  2. any chance that my new employer can still file H1-B with cap-exempted category?
  3. Also, for GC process, new employer have to start PERM and I-140 again freshly ?
  4. Can employer B use my priority date ‘November 8th 2013’ still?


They can withdraw but not revoke. If I140 has been approved for more than 180 days, even if they withdraw, you can still use it to port your priority date and the AC21 cap-exempt H1B extensions beyond six years of H1B term.




You are not obligated to give them your copies of immigration docs like I797. They are yours to keep. Also I140 original is never provided to the beneficiary. In most cases, employer immigration attorney keeps the original on their file.
So do not give them any documents that you already have.

Thanks @Kalpesh_Dalwadi for your prompt response. If I-140 is with the employer ‘A’ then how would employer ‘B’ can file new H1-B with cap-exempted? Basically, how employer B would know that I am eligible for cap-exempted H1-B new?
2) Also, is there any time expiry that H1-B cap exempt can be filed within these time limit?

Dont you have a copy of your I140 approval notice? If not in future make sure you get the copy from your attorney.
You can refer below link to request the copy from USCIS.

No time limit.

Good information @Kalpesh_Dalwadi . Thanks for sharing. If I move to employer ‘B’ in managerial category,

  1. can they upgrade my GC to EB1 OR it will have to be filed again with the same category of EB2 as my original I-140 from employer ‘A’ is approved for non-managerial position?
  2. should employer ‘B’ file new I140 with non-managerial position only to match with original I140 filed by employer ‘A’ in order to align with the original priority date? as people would grow into next levels until they reach GC last stage, correct?

Your employer can file I140 in EB1 if you qualify. I already answered this, check at the start of this post

Same as above.

Thank you @Kalpesh_Dalwadi