I am currently on H1b with I 140 approved (more than 180 days ago) working in IT Team.
My Company (A) is being acquired by another Company (B). The IT department is being acquired by a third-party Company (C).
Company C says they will follow Successor of Interest and try to port I-140 first. And then I can start working for the C. They informed they would not be filing any H1b petition/amendment/transfer.
Will my H1b Status still be valid? Should it also be amended?
After porting the I-140 will the 180 days rule still apply (can they revoke it?)
Do I Have option to change job using the ported I-140 immediately?
“An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”
As far as I know, the 180 days rule do not apply for the successor-in-interest amendment to I-140. If your original I-140 is approved for over 180 days, you should be good to change jobs.
[quote=“Ishna, post:1, topic:98253”]
Do I Have option to change job using the ported I-140 immediately?
Thanks for your reply.
Since this is an Successor in interest, and H1b amendment is not required. Why should the I-140 amended at all? Is it mandatory?
If the Successor in Interest gets rejected, will the I-140 still be valid?
Yes, this is required unless your I-140 was filed under EB1A or EB2 NIW (EB1B & EB1C requires the new employer to file a new I-140). Amendment is a FYI to USCIS that the new employer who is successor-in-interest is taking over your green card process, still has the green card job in the original PERM for you available and is able to pay the wages in your approved PERM/I-140.
What makes you think it will be rejected? If rejected for employer’s inability to pay wages mentioned in your PERM, that means you will need to look for a new employer and that they will need to restart your green card process (Recruitment + PWD + PERM + I-140) however you will be able to retain your priority date in your original I-140.
The reason I think amendment may rejected is because the Company (C) is acquiring only the IT Department of my current Company (A) which is manufacturing Company and not the entire organization which is huge
Since Company (B) which is acquiring A has it’s own IT employees and for continuity of daily IT activities Company C will be successor in interest and will service A(part of B) as Client. So in future, A which is my current company will be client and I will have same responsibilities.
From what I know within the company, there is also an equal chance of SII getting rejected. I don’t want to the current I-140 to get affected because of this and I prefer (my personal opinion) rather they take (Recruitment + PWD + PERM + I-140) instead of SII.
Irrespective of what you think, did you talk to the HR and your new employer’s immigration lawyer? They know better then you or me so if they think they can make SII case, you don’t need to shoot up your stress level.
Thank you. My worries are that if I140 amendment is denied, will I lose the 3 year which might get by joining in another company. Because the project which I will work in my company might end in 2/3 months and then I might be not required in acquiring company.
Thank you very much for your responses. I really appreciate your inputs.
One last question, will the 180 day rule apply to the amended I-140 under the new Company (or) will there be an issue I get terminated or I chose to leave for a different job.
I don’t think there is any concept called porting for I140, neither upgrade nor downgrade. It’s all NEW based on petition type that you choose. In some exceptional cases Amendment is possible which might be applicable in your case as you have a successor in interest. And also I recommend to ask your existing employer to file I-485 concurrently if your priority date became current under EB3, or EB2. I have seen people applied for 485 even though they did not filed PERM, neither 140 filed with the new employer. They got green cards. Some dumb attorneys don’t know these tricks.
I am getting back since, the new employer has filed SII affidavit. Based on this, another employee of the old older company whose visa is expiring has got H1b extension based on SII.
Based on this, the new employer is saying that they will apply for amendment of I-140 slowly and not do any amendment of H1b or I-140 currently and we need to join immediately into their payroll.
Is this even valid, joining on their payroll without any documentation on my side. They are taking example of someone else’s approved visa and say that since SII is approved for that person, I should join their payroll. When the time comes for my visa extension , almost 2 years from now, they would use the same SII to get extension for me. I not even sure that the project will exist at that point of time.
My PD is not current. What the new Company mentioned is; that they are goin to file amendment of I-140 based on Successor in Interest, once successful I can move to their payroll. But now they are not even interested in filing an amendment. They just want me come in to their payroll based on SII affidavit. I don’t have any visa related document which is approved on my name.
This depends on type of acquisition and whether the successor has acquired all assets and liabilities including immigration liabilities. So if your employer is saying that no amendment or change of employer is needed to your existing H1B, then you need to trust them and their immigration lawyer.
Similarly there may be no need to redo PERM and just a SII amendment to existing I-140 should be enough.
You should discuss all your doubts with the immigration lawyer of your new employer so that you feel more confident about your job and immigration status.
Thanks for response. The acquisition is only a department (IT Dept), not the entire Company.
They are not redoing PERM, but amendment of I-140. Initially they mentioned that I could join upon successful completion of amendment, but now they want me to join their payroll while I-140 amendment is in process.
Curious to know how long the SII amendment to I-140 takes.
I’m sort of in the same situation. My I-140 was approved in Jan '22. Our org was acquired by another sometime Dec '21 and now they’re going to do the SII amendment on my I-140 so they can continue with my AOS. It’d be great if anybody knows how long the amendment process is going to take. Thanks !