H-1B with Open-Market I-140: Approved I-140 After Leaving Employer (2026)
An approved I-140 is one of the most valuable immigration assets you can have, and it survives employer separation under the right conditions. Here is what you need to know.
Does an Approved I-140 Survive Employer Separation?
Yes, under AC21, an approved I-140 is not automatically revoked when you leave the sponsoring employer if two conditions are met: (1) the I-140 has been approved for 180 days or more at the time of separation, AND (2) you are in valid nonimmigrant status or have filed an I-485. If these conditions are met, the employer can request revocation only on fraud/material misrepresentation grounds, routine withdrawal is no longer permitted after 180 days. USCIS confirmed this in the 2016 AC21 final rule.
Priority Date Portability: The Core Value
The primary reason to preserve an approved I-140 after leaving an employer is priority date portability. Your priority date, the date your PERM labor certification was filed, stays with you even after the I-140 sponsor withdraws, as long as the I-140 was approved for 180+ days. An engineer from India who has an EB-2 priority date from 2018 retains that date even after 3 job changes, as long as the original I-140 was approved for 180+ days before the first departure.
Using a Prior Priority Date at a New Employer
When your new employer files PERM and I-140, you can port your earlier (better) priority date onto the new I-140 by providing evidence of the prior approved I-140 to USCIS. This is done by citing the prior priority date in the I-129 H-1B extension or I-485 filing. The new I-140 will be assigned your prior priority date rather than the new PERM filing date.
H-1B Extensions Using an Open-Market I-140
An approved I-140 from any employer, even one you left, enables 3-year H-1B extensions for a new employer if: (1) the I-140 was approved, (2) your priority date is not current, and (3) you are beyond the 6-year H-1B cap. The new employer files the H-1B extension (I-129) citing the prior employer's approved I-140. This is legal and USCIS adjudicates these routinely.
Frequently Asked Questions
Can my old employer revoke my I-140 to hurt me?
Only if the I-140 has been approved for less than 180 days. After 180 days, employers can only withdraw on grounds of fraud, material misrepresentation, or invalidation of the underlying labor certification. A routine withdrawal request after 180 days will be denied by USCIS.
What if I leave before the I-140 has been approved for 180 days?
If you leave before 180 days post-approval, the employer can successfully withdraw the I-140 and your priority date is lost. If your I-485 is already pending, consult an attorney immediately — you may be able to port under AC21 to a new employer with a similar occupation.
Does the I-140 need to be from EB-2 or EB-3 specifically?
Priority date portability works across EB categories — you can port an EB-3 priority date onto an EB-2 petition, which is often advantageous for India/China nationals since EB categories have different cutoff dates. The new I-140's category determines which visa bulletin cutoff applies, but the priority date comes from the oldest approved I-140 on record.
How do I prove priority date portability to a new employer attorney?
Provide a copy of the original I-797 approval notice for the prior I-140, the original PERM ETA Form 9089 showing the priority date, and the prior employer name and EIN. Your new attorney will incorporate this into the I-485 filing or H-1B extension petition as a priority date porting request.