1. It’s difficult to apply for adjustment of status if the employee is no longer affiliated with his former company.
A reader asks:
I currently have an approved I-140, which won’t be 180 days until February 2026. However, my current company (Company A) operates in an extremely toxic environment. I haven’t been home to see my parents in years, so I plan to resign from my current company and leave the country. 2026 will be my fifth year on the H-1B. I’d like to return to the US to find a job after the market eases. I have a question:
If I resign and leave the US before my sixth year on the H-1B, will I need to re-enter the lottery and obtain a new H-1B visa if I find a job upon returning to the US? If I find company B willing to sponsor me in the future, when the current application is in the queue, my I-140 from company A cannot be used to apply for an I-485. Can it be used to extend my current H-1B visa? There’s a theory that if I leave the US for more than a year, I need to re-draw the H-1B visa. Is this necessary? How is the grace period calculated for resignation? If I change to another status (F or B) in the meantime, does that immediately end my grace period?
Alan Lee Esq. answers:
After resignation, the grace period is 60 days to find another H-1B position and file a new petition, change status, or leave the country. Given the time would take to change status to F-1 or B, the grace period would have ended. If you leave the country before completing six years on the H-1B, you have the balance of time in the event that you find another employer to sponsor you. If the I-140 approval is not timely revoked by the employer and there was no basis to revoke by USCIS for fraud or misrepresentation or error, it can be used for a one-year extension when the priority date becomes current. However, you must file the I-485 adjustment of status application within the one-year period in which the priority date becomes current. If you fail to file within that year, you may become ineligible for further extensions unless you can show that the delay was due to circumstances beyond your control. In the situation that you have described, it appears that you are not eligible for adjustment of status as you are no longer with company A.
2. To change the priority date on your I-140 petition, please contact the USCIS
A reader asks:
My EB-1 application, filed this month, was unexpectedly approved. I was pleasantly surprised to find that the priority date didn’t link it to my NIW from three years ago. I heard I can call USCIS and have it linked. How do I do this? Otherwise, I’ll have to wait forever to file my I-485.
Alan Lee Esq answers,
I am not aware that USCIS has a service under which it will change the priority date of the I-140 approval if it was not initially requested in the I-140 petition. Given the seriousness of not being allowed to transfer over the old priority date and the impracticality of filing a new I-140 petition, you or your attorney would hopefully be able to contact USCIS through its contact center at 1-800-375-5283 and have a sympathetic officer and supervisor assist you with the situation.