It is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days
A reader asks:
I submitted a PERM application in January 2024, and based on my current processing times, I expect it to be approved around February or March 2025. I plan to have my lawyer immediately submit the I-140 after PERM approval with premium processing. I predict that I will receive I-140 approval around March or April 2025. If I want to switch to a new company immediately after getting I-140 approval, based on this timeline, should I first have my current employer file an H-1B extension, or if I find a new employer before the end of June (my initial 3 year H-1B expires in June 2025), should I have the new employer file the H-1B extension? Should I have the old employer file the extension then switch employer after 180 days?
Arthur Lee, Esq. Answers:
My general recommendation would be to have your current employer file an H-1B extension on your behalf. Job porting only works if you have an I-485 application that has been pending for at least 180 days and you work in a position that is in a same or similar occupational classification that is the basis of your I-140 approval. If you have your I-140 petition approved, then switch to a new job immediately without having an I-485 application filed and pending for at least 180 days, then your PERM ETA 9089 and your I-140 approvals will not be valid for your I-485 application. You will not be able to port in this case. If you do move to a new position, then you will need to start the PERM process over. The only thing that you might retain is your priority date assuming that your soon-to-be previous employer has not timely revoked your I-140. Unless your employer is still willing to offer you the I-140 position upon your I-485 approval (which seems unlikely in this case), you would need to have your new employer start over from scratch in the PERM process. Therefore, it is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days based upon an approved or pending I-140.