An H-1B holder is currently stuck outside the US after completing their six year H-1B limit. They now wait for their PERM decision linked to their EB-2 NIW process, and the situation looks risky.
Denial of EB-2 and priority date concern
They filed in September last year, but their EB-2 was denied in April 2025. Their Priority Date may now be at risk if their employer fails to maintain the I-140.
Risk of losing I-140 validity
Experts explain that losing I-140 validity within six months of approval leads to loss of Priority Date. With the applicant outside the US, they have no active H-1B employment to back portability.
Limited options and new obstacles
Even after PERM approval, more challenges follow. A fresh H-1B petition is possible, but time spent abroad pushes them into the new fee structure and higher cost bracket.
Financial strain of reapplying
The new fee structure means they need to pay 100,000 dollars for an H-1B. Finding an employer willing to carry this cost becomes difficult, especially if their current employer withdraws support.
Next step through consular processing
They need consular processing after I-140 approval. Entry using the old H-1B stamp remains technically possible, but approval chances look low and uncertain.
Outcome depends on employer support
Their future now depends on the employer’s commitment. Only by continuing with I-140 and consular processing can their Priority Date stay protected.
