1. If I-485 is denied and H-1B needs to change employer
A reader asks:
I am currently working under an L-1B, with a priority date (PD) of December 2020. In early 2024, after the EB-3 Chart B became current, I downgraded and concurrently filed my I-140 and I-485. I found that at the time of filing, an I-485j was not required. Later, I received my combo card. My I-485 has been pending for almost a year, and I am currently in CRP (since Chart A has not yet become current). In 2024, I was finally selected in the H-1B lottery, but because of the pending I-485, my lawyer advised consular processing for H-1B activation. So I currently have an approved H-1B I-797, but haven’t attended the H-1B visa interview. After being laid off, the company is likely to keep me on payroll for a few more months.
Can I leave the US and apply for an H-1B visa during this period? Since I am currently on L-1B, if the H-1B visa is not viable, I understand that I can remain legally in the U.S. using my combo card. Given that my I-485 is in CRP, I need to wait for Chart A to become current before my case is processed (e.g., receiving an interview notice or an RFE for I-485j). Is my understanding correct?
The EB-3 Chart A is currently at early July, meaning my December priority date will likely not be current at least the next fiscal year, which gives me about 9 months to find a job and file a new I-485j. Currently, my title aligns with the SWE (software engineering) job description from my PERM application. Does this mean I can look for a general SWE position under my I-485, or must he job duties be closely related to my previous role?
If my I-485 is denied, I will have to leave the U.S. immediately. Would I still have an opportunity to find a job and return to the United States later? I have an approved H-1B I-797. Can a new employer file a petition for me, or would I have to go through the lottery process again?
Alan Lee, Esq. answers,
If the company has laid you off, you should not be thinking of leaving the US in applying for an H-1B visa since that would involve the misrepresentation that you are returning to the US to work for the same employer. During the time that an adjustment of status application is waiting to become current, USCIS can request an interview or further evidence. You are eligible to apply for porting to a new employer if it is offering a position in the same or similar occupation. That would be a judgment call for USCIS depending upon the closeness of the job descriptions, wage, SOC code, etc. If your I-485 application is denied and you have no other basis to remain in the US, you should leave the country within 30 days. Assuming that you had an approved change of status on the H-1B, another employer could file a new petition for you without your having to go through the lottery process again. I note, however, that unless the new $100,000 H-1B fee is successfully challenged, the new employer would likely have to pay the fee in order to do the sponsorship.