H1B subject to cap for R2A?


lolopot

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Hello,

 

I had valid H1B visa from Jun 2006 till Oct 2013. I had multiple extensions as my GC was filed under EB-2 with Priority date of Dec 2009.

However I moved back to my home country in Feb 2013. My I-140 was approved but company had not yet filed for EAD/I-485.

I understand that I will need an employer to sponsor a new H1B for me to come back to work in the US. Will this H1B visa be subject to the cap or will it be cap exempt?

 

Also, can the new employer pick up on my previous I-140 and the Priority Date of Dec 2009?

 

Please advise. Thanks in advance.

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Thanks for the clarification. My responses highlighted below...

 

1. What is R2A? Return to USA

2. Based on an approved and non revoked I-140 you are entitled to H1 extensions beyond the initial 6 years in total.

Is this valid if I work for a new employer? Does my new role have to be a logical extension of the previous role or can it be totally different (Engineering vs. Leadership/Management role)?

 

3. You can in most circumstances retain the PD of the previous I-140 though the new employer will need to start from scratch, PERM etc. Good to know, thanks.

4. Why are you not considering joining the GC sponsor on H1? They do not have an open position for me as of now, otherwise that would have been my first and ideal option.

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2.  new employer is OK. No logical extension required. But petition will not be approved if job is outside of your current education and work experience.

4.  Although it is possible they do not have position now but  cant understand how they will offer position if dates become current tomorrow. GC is for future employment with sponsor.

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4. Why are you not considering joining the GC sponsor on H1? They do not have an open position for me as of now, otherwise that would have been my first and ideal option.

That means the GC is fraudulent. They are required by law to have the position open to you all through the process.

If the position doesn't exist anymore, they would have to revoke the I-140.

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That means the GC is fraudulent. They are required by law to have the position open to you all through the process.

If the position doesn't exist anymore, they would have to revoke the I-140.

 

Incorrect .  There is NO legal requirement to revoke 140 if the position does not exist anymore.  You need to understand the difference between requirements for 140 and H1 .

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Incorrect .  There is NO legal requirement to revoke 140 if the position does not exist anymore.  You need to understand the difference between requirements for 140 and H1 .

 

Ahh, my stalker is back.

As usual, you haven't understood my post. If the job doesn't exist, the GC filing would be fraudulent, which means the I-140 is also fraudulent.

I suggest learning about these things instead of stalking me.

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Ahh, my stalker is back.

As usual, you haven't understood my post. If the job doesn't exist, the GC filing would be fraudulent, which means the I-140 is also fraudulent.

I suggest learning about these things instead of stalking me.

 

No, your mentor is back   to correct you once again :)    Your post is INCORRECT  on multiple points.  

 

First,  there is NO requirement to revoke a 140  (I suggest you show the law per your words if you think otherwise)

 

Second,  an employer is free to fire an employee even after a 140 is approved (or even after 485 is filed) .    They are NOT " required by law to have the position open" .

 

Third OP  DID NOT file a 485 with his old Employer's 140 .  Any fraud is just  your hallucination. 

 

I suggest grow up .... and learn the law  rather then finding a "fraud" everywhere .

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Ahh, my stalker is back.

As usual, you haven't understood my post. If the job doesn't exist, the GC filing would be fraudulent, which means the I-140 is also fraudulent.

I suggest learning about these things instead of stalking me.

 

No, your mentor is back ...  correcting your  mistakes :)

 

First ,  there is NO Law which says 140 has to be revoked if employee is fired

 

Second,  there is NO law which says  employer  "is required by law to have the position open".   Employer can fire employee any time .. after filing 140 ,  after filing 485.   AND again,  there is no law that Employer need to revoke the 140 if they fire employee

 

Third (and most important) ,  OP did not say his employer filed 140 AFTER firing him .  So all fraud we see is  simply in your mind.

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If the job doesn't exist, the I-140 would be fraudulent. And as such, the PD could not be reused.

 

Wow!  Are you writing your own laws ?  It is VERY legal to reuse  PD when an employee is fired.    Essentially ,  as long as the job existed when 140 was filed and approved,  there is NO fraud and no reason PD cannot be reused .  

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Ahh, my stalker is back.

As usual, you haven't understood my post. If the job doesn't exist, the GC filing would be fraudulent, which means the I-140 is also fraudulent.

I suggest learning about these things instead of stalking me.

 

Your mentor is back ... correcting your mistakes.   I suggest learn the law and do not see fraud everywhere 

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No,  a 140 CANNOT be filed and I do not think anybody said that.  But a already filed and approved 140 NEED NOT be revoked if employee leaves the job (or is fired).  

 

It would be fraudulent, and hence the PD could not be reused.

Anybody who has a clue knows that

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