Will my H1B still be valid if I switch jobs? 2 Answers as of November 10, 2010

I am Indian citizen and have completed 6 years on my H1B. Based on my approved labour and I 140 (priority date Oct 2008, I got a three year extension after my 6 years. If I take up a new job with company B, will my H1B be still valid for the next 3 years based on I140 approved in EB2 from original Company A. Since I cannot apply for I485 (priority date not current for India), is it ok for me to switch jobs?

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Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
H-1B is employer specific so if you change jobs, the new employer would need to file a H-1B visa petition on your behalf. If you are relying on an approved labor cert and the I-140 pending, then you should be able to obtain a H-1B with a new employer on the same basis. However, if you are not going to be working for the petitioning employer of your labor cert and I-140, you would need to start that process from the beginning with the new employer.

Please feel free to contact me directly if you have any additional questions or if I can be of further assistance to you in this matter.
Answer Applies to: California
Replied: 11/10/2010
Pacifica Legal Services
Pacifica Legal Services | Floyd Fernandez
Since you have a priority date of greater than one year on your I-485, you can obtain a new H-1B through your new employer, if obtained within six months of the change in employers. However, since you have already been in the country more than six years in any event, there will be suspicion of intent to stay permanently and attempt to evade the intent of the H-1B on the part of the CIS. However, if the new employer gets the new H-1B and approved I-140 before the expiration of the six month period, you should be okay. When you get the renewal of the entry visa back in your country at the U.S. Embassy, be armed with the I-797C Notice of Action of the approved I-140 for the new employer, along with the granted new H-1B. If you have more questions and need help with the applications involved, feel free to call or e-mail to schedule an in-person or telephone consultation. Best to you.
Answer Applies to: California
Replied: 11/10/2010
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