If you’re an H-1B worker with an approved Form I-140 and are exploring options to change employers or extend your stay beyond six years, this article explains key concepts like “porting,” H-1B extensions, and steps to stay compliant with U.S. immigration laws.
What Is Job “Porting”?
Porting refers to transferring your job offer or employment to a new employer or position under specific provisions. There are two types:
- H-1B Petition Portability: If you’re on H-1B status, you can begin working for a new employer as soon as they properly file a new H-1B petition (Form I-129). You don’t have to wait for the petition to be approved before starting work.
- Immigrant Worker Petition Portability (INA 204(j)): If your Form I-485 (adjustment of status application) has been pending for at least 180 days, and you have an approved Form I-140, you may transfer your approved immigrant visa petition to a new job offer. The latest job must be in the same or similar occupational classification, and you must file Form I-485 Supplement J to confirm the transfer.
Leaving Your Current Employer While on H-1B
If you want to work for a new employer, you can switch jobs without waiting for your new employer’s H-1B petition to be approved. As long as the new employer files a non-frivolous H-1B petition on your behalf, you can start working immediately.
What Happens if Your H-1B Job Ends?
If your H-1B employment is terminated, you generally have a 60-day grace period to take one of the following actions to remain in the U.S.:
- File for a change of status.
- Apply for adjustment of status (if eligible).
- File for a compelling circumstances Employment Authorization Document (EAD).
- Find a new employer willing to sponsor an H-1B petition.
If no action is taken within 60 days, you and your dependents may need to leave the U.S.
Leaving Your Employer After I-140 Approval
Your Form I-140 (Immigrant Petition for Alien Workers) approval comes with several benefits:
- Priority Date Retention: Once your I-140 is approved, your priority date is locked, even if you leave your job.
- H-1B Extensions Beyond 6 Years: If your priority date is not current, you can apply for H-1B extensions in 3-year increments with an approved I-140.
Employer Withdrawal of I-140
- If your employer withdraws your I-140 within 180 days of approval, USCIS will revoke the petition. You’ll need a new I-140 to extend H-1B status or adjust status in the future.
- If the I-140 has been approved for more than 180 days, withdrawal by the employer won’t impact your ability to retain the priority date or extend H-1B status.
Self-Employment and Porting
You may be able to “port” to self-employment if:
- Your Form I-485 has been pending for at least 180 days.
- The new role with your startup is in the same or similar occupational classification as the job on your approved I-140.
To do this, file Form I-485 Supplement J and provide evidence that the business and job offer are legitimate.
Waiting for an Immigrant Visa to Be Available
You don’t need a valid I-140 during the entire waiting period for your priority date to become current. However, you will need an approved I-140 when you file your Form I-485.
Protections Against Employer Retaliation
If you report suspected fraud or abuse and face retaliation, immigration laws may protect you. In some cases, USCIS may allow you to extend or change your H-1B status even if you’ve fallen out of status due to extraordinary circumstances.
Job changes or extensions for H-1 B workers with an approved I-140 can be complex. Whether you’re considering porting, self-employment, or ensuring compliance after leaving your employer, it’s best to consult an experienced immigration attorney.
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