Employer Withdrew Your I-140? What the 180-Day Rule Protects and What It Doesn't

Your employer pulled your approved I-140 or the company shut down. You usually keep the priority date, but your job offer, H-1B status and your spouse's EAD follow different rules.

Part of our guide to the H-4 EAD.

An I-140 withdrawn after 180 days or more, counted from its approval, stays approved unless USCIS revokes it on other grounds, and the same holds if your employer's business closes after that point. That is 8 CFR 205.1, in effect and unchanged as of November 1, 2026. You generally keep your priority date, and the petition can still support H-1B extensions beyond six years. The 180 days never protect the job offer, your H-1B status or your spouse's H-4 status. An earlier withdrawal, with no I-485 pending 180 days, revokes the petition automatically, though the priority date usually survives.

Status as of 2026-11-01:

• 180-day rule and priority date retention: in effect since 2017-01-17; USCIS issued no new I-140 or AC21 policy in October 2026, per its Policy Manual updates page.
• H-1B worker 60-day grace period: in effect. Eliminating it is only proposed; comments close 2026-11-10 at 11:59 p.m. ET (after that date, check the Federal Register; a closed comment period is not a final rule).
• H-4 EAD: no proposed or final rule ends the H-4 EAD; DHS lists a long-term agenda item (RIN 1615-AD14) with no proposal date.

Employer withdraws I-140 after approval: what 8 CFR 205.1 says

An employer can withdraw an approved I-140 at any time by written notice to USCIS. If the withdrawal is filed 180 days or more after approval, or after an associated I-485 has been pending 180 days, the petition remains approved unless revoked on other grounds. The job offer ends either way, and the priority date generally carries forward.

The operative sentence, from the current text of 8 CFR 205.1 on eCFR:

"A petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status application has been filed, remains approved unless its approval is revoked on other grounds."

The same paragraph says that on withdrawal "the job offer of the petitioning employer is rescinded," so the green card needs a new employment-based petition unless INA 204(j) portability applies. Three things move separately: the petition (still approved or revoked), the priority date (usually kept either way) and the job offer (gone either way). Only the petitioner can withdraw, and when a withdrawal does revoke the petition, 205.1(b) has USCIS mail the notice to the petitioner's last known address, not to you.

Are the 180 days counted from filing or approval?

From approval, the date on the I-797 approval notice, not the filing date. The second trigger is an associated I-485 pending 180 days; whichever comes first protects the petition. A worked count (our arithmetic): an I-140 approved on 2026-06-01 reaches day 180 on 2026-11-28, so a withdrawal received on 2026-10-20 lands on day 141 and revokes it. Near the line, have an attorney check the count against the real notices.

Before 2017-01-17, a withdrawal revoked an approved I-140 whenever it came; the AC21 retention rule (81 FR 82398) added the 180-day line.

I-140 withdrawn after 180 days vs before: what survives

The table assumes no finding of fraud, willful misrepresentation or material error, and no DOL revocation or invalidation of the labor certification.

What survives an I-140 withdrawal or business closure, as of 2026-11 (regulation text; "our reading" marks inferences)

The 2016 rule says protected petitions "generally will remain valid for various other purposes," naming 204(j) portability, AC21 104(c) and 106(a)-(b) extensions, and the compelling-circumstances EAD in 8 CFR 204.5(p), which also requires that a visa not yet be available on your priority date. A protected petition still cannot carry an I-485 outside 204(j), because one from an employer that no longer intends to hire you "does not represent a bona fide job offer." With a pending I-485, see how AC21 job portability works when you change jobs.

Retain your priority date after an I-140 withdrawal: how it works

8 CFR 204.5(e) gives you the priority date of an approved EB-1, EB-2 or EB-3 petition for "any subsequently filed petition" in those categories (the earliest, if you hold several). It is lost only if USCIS revokes the approval because of:

• fraud or a willful misrepresentation of a material fact;
• DOL revocation of the approved labor certification;
• USCIS or State Department invalidation of the labor certification; or
• a USCIS determination that the approval rested on a material error.

An automatic revocation after an early withdrawal or closure is not on that list, so on the regulation's text the date carries forward either way. A petition withdrawn before approval has nothing to retain.

The date also works across categories: an EB-2 date can generally go on a new employer's EB-3 petition (general practice; an attorney checks each case). In the November 2026 Visa Bulletin, EB-3 India's Final Action Date (2014-01-22) is later than EB-2 India's (2013-11-01), while both Dates for Filing are 2015-01-15. USCIS requires the Dates for Filing chart for November I-485s (filing charts), and consular cases always use Final Action Dates. See our EB-3 downgrade guide.

The stakes are wide. USCIS counted 856,662 primary beneficiaries of approved employment-based petitions waiting for a visa as of June 2026, 491,773 of them from India (data posted 2026-09-08). See also what happens after your I-140 is approved.

Can I still extend my H-1B beyond six years with a withdrawn I-140?

Often yes if the petition was withdrawn at day 180 or later; not on a petition revoked earlier. Two AC21 provisions apply, and they behave differently.

The three-year 104(c) extension

Under 8 CFR 214.2(h)(13)(iii)(E), you qualify as "the beneficiary of an approved immigrant visa petition" who would be eligible "but for application of the per country limitation," and the new employer must show visa unavailability on the day it files. A petition that remains approved after a withdrawal still counts, the H-1B petitioner "need not be the employer that filed the immigrant visa petition," and you need not be in H-1B status, or even in the US, at filing. Revoking the I-140 ends these extensions.

The one-year 106(a) extension

Under (D), at least 365 days must have passed since a PERM or I-140 was filed for you. Extensions run in up to one-year increments until the approved labor certification expires or a "final decision" is made, including a decision to "Deny the immigrant visa petition, or, if approved, revoke such approval." On our reading, an automatic revocation is that kind of decision for that case. Paragraph (D)(10) also bars future 106(a) extensions if you fail to file an I-485 or immigrant visa application within one year of a visa becoming available, a limit that covers approved petitions "including petitions withdrawn by the petitioner."

Since 2026-08-05, PA-2026-05 lets officers deny without an RFE when required initial evidence is missing (in effect, challenged), so keep the I-140 approval notice ready for the new employer. Mechanics: H-1B extensions beyond six years with an approved I-140.

Does the H-4 EAD survive after the I-140 is withdrawn?

Two things decide it: the eligibility basis and your spouse's H-4 status. Under 8 CFR 214.2(h)(9)(iv), an H-4 spouse may be eligible "only if the H-1B nonimmigrant is the beneficiary of an approved Immigrant Petition for Alien Worker," or holds H-1B status under AC21 sections 106(a) and (b); USCIS's H-4 employment authorization page uses the same two tests. Neither addresses withdrawal, so this is our reading: a petition that remains approved keeps supporting the basis, and one revoked before day 180 does not, unless you hold 106(a)/(b) status from another case.

The basis alone is not enough. The (c)(26) EAD lasts only to the end of H-4 status, which depends on your H-1B status. The grace-period rule bars work "unless otherwise authorized under 8 CFR 274a.12"; whether that covers your spouse's (c)(26) card during your grace period is a question for your attorney.

Renewals are harsher too. Under the final rule ending automatic EAD extensions (91 FR 65306, in effect since 2026-10-14), H-4 (c)(26) authorization stops the day after the card ends for renewals filed on or after 2025-10-30. On 2026-11-01 the USCIS processing-times tool showed 17.5 months for a standalone H-4 EAD and 6.5 months when filed with the H-4 I-539 (80% of cases completed within); those figures move.

Company closed, I-140 approved: what changes?

The rule mirrors withdrawal. Under 8 CFR 205.1(a)(3)(iii)(D), if the business terminates 180 days or more after approval, or after an associated I-485 has been pending 180 days, "the petition remains approved unless its approval is revoked on other grounds." An earlier closure automatically revokes an EB-1B, EB-1C, EB-2 or EB-3 petition, and the 204.5(e) priority date analysis still applies. An acquisition or merger is a different question, usually about whether the buyer is a successor-in-interest, and needs an attorney. In a closure, the practical risk is losing your documents, because nobody may be left to send you the approval notice.

A worked timeline: same layoff, two outcomes

Two hypothetical EB-2 workers born in India, each with a 2023-03-15 priority date, have a last day of work of 2026-10-02. The employer withdraws both I-140s on 2026-10-20. Dates are illustrative; day counts are our arithmetic.

The grace period comes from 8 CFR 214.1(l)(2): "up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter," once per validity period. Worker B's attorney must look elsewhere, such as time left under the six-year limit. Both need a new PERM: as of 2026-10-21, DOL's FLAG page showed analysts reviewing applications filed in January 2026, and August 2026 determinations averaged 303 days. See our 60-day grace period guide for laid-off H-1B workers, or a layoff with a pending I-140 if yours was not yet approved.

What to do in the first two weeks

1. Request copies of the I-140 approval notice (Form I-797) and the certified PERM (Form ETA-9089) from your employer or its attorney, before your last day if you can.
2. Record the approval date and any Form I-485 receipt date, and count 180 days from each.
3. Check the I-140 receipt number in USCIS's online case status tool.
4. Download your latest I-94 from CBP and note its end date; the grace period cannot run past it.
5. Send those copies to the new employer's attorney. From 2026-11-09, USCIS accepts only the 09/09/26 edition of Form I-129.
6. Ask the new employer about a new PERM (it starts with a Form ETA-9141 prevailing wage request) and a new I-140 claiming your earlier priority date.
7. Ask the attorney how your spouse's H-4 extension (Form I-539) and H-4 EAD (Form I-765, paper only for (c)(26)) fit around your new H-1B petition.

One caution: DOL's 2026-10-08 PERM suspension of eight named employers (Microsoft, Adobe, Cognizant, Infosys, TCS, Wipro, HCL and Capgemini) had no written notice or end date as of 2026-11-01. With one of them as your new employer, the new PERM could be delayed, but Mayer Brown notes the action "does not suspend any employer from the H-1B program." See what the PERM suspension of eight employers does.

Common mistakes

Misconception: "My employer withdrew the I-140, so my priority date is gone." Correction: Under 8 CFR 204.5(e)(2), it is lost only for fraud, willful misrepresentation, labor certification revocation or invalidation, or material error, even when the withdrawal came before day 180.

• Counting 180 days from the filing date. It runs from approval, or from the I-485 filing.
• Reading "remains approved" as "my green card is on track." The job offer is gone; you need a new I-140 or, with an I-485 pending 180 days, 204(j) portability.
• Treating an approved I-140 as a status. Your stay rests on H-1B status, the grace period and any new petition.
• Forgetting the one-year filing rule. (D)(10) applies to withdrawn petitions too.
• Trusting a thread over the text. After the PERM suspension, the Blind question "Will it impact extensions as well ? With approved i140." drew both yes and no answers. The regulation decides.

Frequently asked questions

What happens if my employer withdraws my approved I-140?

A withdrawal filed 180 days or more after approval, or after your I-485 has been pending 180 days, leaves the petition approved unless USCIS revokes it on other grounds (8 CFR 205.1); an earlier one revokes it automatically. Either way the job offer is rescinded, and you generally keep the priority date (8 CFR 204.5(e)).

Are the 180 days counted from filing or approval?

From the I-140 approval date on the I-797 notice, not the filing date. An associated I-485 pending 180 days is the other trigger, and whichever comes first protects the petition. Near the line, have an attorney check the count.

Can I still extend my H-1B beyond six years with a withdrawn I-140?

You can if it was withdrawn at day 180 or later, because it remains approved and can support three-year AC21 104(c) extensions when the per-country limit makes a visa unavailable, even with a new employer. A petition revoked before day 180 cannot. One-year 106(a) extensions have their own rules.

Does my spouse keep the H-4 EAD after the I-140 is withdrawn?

On our reading, yes while the petition remains approved, because eligibility rests on an approved I-140 or AC21 106(a) and (b) status. The EAD also needs valid H-4 status, which depends on the H-1B status. As of November 1, 2026, no proposed or final rule ends the H-4 EAD; DHS lists a long-term agenda item (RIN 1615-AD14) with no proposal date.

What if my company goes out of business?

A closure 180 days or more after approval, or after your I-485 has been pending 180 days, leaves the petition approved unless revoked on other grounds; an earlier one revokes it automatically, though the priority date is generally retained. Either way you need a new employer and, unless 204(j) portability applies, a new I-140.

Sources

• 8 CFR 205.1, automatic revocation (eCFR)
• 8 CFR 204.5(e) and (p), priority date retention and compelling-circumstances EAD (eCFR)
• 8 CFR 214.2, AC21 extensions and H-4 EAD and 8 CFR 214.1, grace period (Cornell LII)
• AC21 retention final rule, 81 FR 82398 (GovInfo)
• USCIS, Employment Authorization for Certain H-4 Dependent Spouses
• USCIS filing charts, Policy Manual updates, PA-2026-05, Form I-129 and processing times
• Final rule ending automatic EAD extensions, 91 FR 65306 and proposed elimination of the worker 60-day grace period
• RIN 1615-AD14 agenda entry (Reginfo.gov)
• USCIS approved petitions awaiting visas, June 2026 (XLSX) and DOL FLAG processing times

How we checked this: on 2026-11-01 we read the eCFR text of 8 CFR 205.1, 204.5, 214.1 and 214.2 (current through 2026-10-29), the 2016 AC21 retention rule, and the USCIS, DOL and Federal Register pages above.

This is general information, not legal or tax advice. Your own I-797 notices and I-94 govern, and a licensed immigration attorney should review your facts before you or a new employer act.

If a layoff or closure has you looking for a new sponsor that can file your H-1B and restart PERM, F1Jobs helps international professionals run a focused search for employers that sponsor.