H1B Cap Exempt Eligibility

[Kris01]

I was working on H1B visa from April 1996 to November 2000. I came back to India in December 2000. I have not used the full six years of my H1B visa.

I have an approved I-140  approved in February 2001. 

I am currently in India. My question is Am I eligible for applying for H1B visa under cap exempt category as my I-140 is approved?

I would appreciate if someone can answer my query at the earliest.

Thanks

[User099]

If the I140 is withdrawn before 2017, you cant use it. I think you can still file under cap exempt and will get the remaining H1 period. 

[Kris01]

My I-140 is not withdrawn. I recently checked my I-140 status in USCIS website. It shows as approved. The company which filed my I-140 no longer exists. Can I use my the priority date of my approved I-140 to process my Green card with a new company and also filing H1B visa under cap exempt? Please note I am currently living in India.

Thanks

[cyberlord]

Yes, you should be able to.

[User099]

Technically you should be able to use the Priority date from old I140, but new employer will have to file for a new PERM and I140. But I would suggest you to talk to an attorney to make sure you are good as the I140 is nearly 20 years old. I don't know if anything else will come into play here.

[Kris01]

Thanks User099 & Cyberlord for answering my query. I came to India in December 2000. I read in one of the immigration forums that if you were not in US in past six years then you are considered as out of status and cannot apply for H1B under cap exempt category and have to apply fresh H1B under lottery system. Is this correct?  I would appreciate an early response.

Thanks

[pontevecchio]

That is not correct. If you stay out for more than 1 year, you can opt for a cap-subject H1 total of 6 years or claim the remainder of your total of 6 years.

Discuss the matter of the I-140 with the firm of Murthy or any of your choice.

[User099]

10 hours ago, Kris01 said:

Thanks User099 & Cyberlord for answering my query. I came to India in December 2000. I read in one of the immigration forums that if you were not in US in past six years then you are considered as out of status and cannot apply for H1B under cap exempt category and have to apply fresh H1B under lottery system. Is this correct?  I would appreciate an early response.

Thanks

Honestly I am not aware of any such rule.

[Kris01]

Thanks evecchio and User099. I don't have a copy of my approved I-140. I had contacted FOIA for a I-140 approval copy they asked to contact my old company to get the copy but my old company which I had filed my I-140 no longer exist.

I have a copy of my I-140 Receipt Notice. My question is can I use my I-140 Receipt notice document to apply for H1B visa under cap exempt category. ? I would appreciate an early response to my query.

Thanks

[User099]

On 2/1/2020 at 1:42 AM, Kris01 said:

Thanks evecchio and User099. I don't have a copy of my approved I-140. I had contacted FOIA for a I-140 approval copy they asked to contact my old company to get the copy but my old company which I had filed my I-140 no longer exist.

I have a copy of my I-140 Receipt Notice. My question is can I use my I-140 Receipt notice document to apply for H1B visa under cap exempt category. ? I would appreciate an early response to my query.

Thanks

You might have to talk to an attorney to see if they can use the Receipt notice and the online status of the I140 (if it still shows the case is approved) and use that to apply for H1. I think Yes, but I will let them confirm it.

[Kris01]

Thanks User0099 for your response. I resigned my old company in US and came back to India in December 2000. Like I mentioned my I-140 was approved in February 2001. My question is as I was not working with my old company when my I-140 was approved. Can I use my approved I-140 for filing H1B under cap exempt and port my priority date  with a new company when they start my PERM. I would appreciate early response.

Thanks.