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.