[miglena]

Hello, We have a problem figuring out what went wrong and how to proceed.
Here are the facts:
1. We moved to US in 2007 with L visas (my husband L-1b, be L-2).
2. Two years later the employer told us we need to change the visas and we became holders of visa H (H-1B and H-4).
3. I am a student who can not do any paid or unpaid internship for a profit organization being on H-4.
4. Three years ago the employer started a procedure for a green card. Up today, we have not even passed the labor stage.
As far as we understand, being on H visa, the best case scenario (without considering the green card) will be to stay till 2013. Now my husband would like to change his employer. We know that we can transfer H visa to other employer, but is this true that there is no way we can stay later than 2013 even if my husband start a new job in the beginning of next year. There will not be enough time for starting again a procedure for green card and the H visa will expire in 2013. Either way, we must leave US in 2013?

Thank you very much for your answer.

[NYcityboy]

It's a bit unusual to change up from L-1B to H, unless you need the extra year of eligibility or the company has restructured so they no longer have the qualifying corporate relationship with an overseas company. It would be good to know.

Your husband can have another H petitioner file for him and can work for the new petitioner as soon as the receipt notice is received. He can and should file the new H before quitting his current position.

If the new petitioner or any other petitioner files for a labor certification before the end of the 5th year of actual H-1B status, then the company is eligible to file for H extensions beyond the 6 year statutory maximum until the LC is approved and the I-140 filed and AOS filed.

Bottom line, if you change employers, have them start the LC process immediately. It generally takes at least 4-6 months to get a case filed with the DOL.

Have the company immigration attorney confirm this and also get a second opinion from an experienced immigration attorney.

I hope this helps, good luck.

[miglena]

Thank you very much for your response.
Do you know what will happen if LC is approved with the current employer. Does my husband needs to stay with him till he gets the green card procedure finished or he can still go to a new employer? If he change the employers what will happen?

[NYcityboy]

After LC approved, he will still need to stay with the company until the I-140 filed, the PD current, and AOS filed and pending for 180 days. After this he qualifies for the I-140 portability provisions.

If these terms are met, he will only need to have a job offer in the "same or similar" position to get the PR approved with a new employer. Best to have an attorney review the new position and terms to make sure the new company and position qualifies.