Company B (a consulting company) filed my PERM Labor Certification in September 2024, and it was approved in February 2026.
My H-1B reached its maximum stay (max-out) on November 5, 2025, and I returned to India on November 3, 2025. Since then, I have continued working for Company A from India.
I recently contacted Company B regarding the next step of filing my I-140 Immigrant Petition. However, they responded:
“We can only apply for the I-140 if you are here with a project. We are already under a lot of burden, and it is not easy for us to do anything at this time. This is a complicated process since you are not in the U.S., and you were never on our payroll.”
Based on the information I have found on various immigration websites, it appears that an I-140 petition should generally be filed as soon as possible and no later than 180 days after the PERM approval date to preserve the approved labor certification and the priority date.
Could you please guide me on the following questions?
Can Company B file my I-140 even if I do not currently have a project with them?
Are a job offer, active employment, or pay stubs required to file the I-140?
Does the employee need to be physically present in the United States for the employer to file the I-140?
I would greatly appreciate your guidance on these questions.
They can file i140 but might not want to file as it is considered a liability. USCIS considers the i140 sponsorship a serious matter and counts the total salary (of all i140 that company sponsored) to see if they can really pay those salaries in future.
A couple of points on timing that matter here, because they change what is still on the table:
A PERM approval is not valid forever - it expires 180 days after the approval date unless an I-140 is filed against it. Approved in February 2026 means that window closed around early August. The first thing to confirm with Company B is whether they ever actually filed the I-140, because if they did not, the labor certification has already lapsed and would have to start over from scratch.
The priority date is not locked by the PERM approval either - it is fixed only by the date USCIS receives the I-140. So with an India-born date and a years-long EB-2/EB-3 queue, nothing is actually secured until a real I-140 receipt exists.
Since the employer side here is shaky (never on their payroll, no project, they are openly reluctant), it may be worth looking at self-petition routes that do not depend on any sponsor at all. EB-2 NIW needs no employer, no PERM and no job offer - you file the I-140 yourself and prove the Dhanasar prongs. EB-1A is the other self-petition option if the profile can meet 3 of the 10 criteria. Plenty of consultants in exactly this situation pursue an NIW on their own rather than wait on a reluctant sponsor, and go through consular processing from India after approval.
General information, not legal advice - given the possible lapsed PERM, this specific case is worth a sit-down with an immigration attorney.