lolopot Posted December 2, 2014 Report Share Posted December 2, 2014 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. Link to comment
jairichi Posted December 2, 2014 Report Share Posted December 2, 2014 You will be cap exempt as long as I-140 is not revoked by employer. Even if I-140 is revoked you can retain PD. Link to comment
pontevecchio Posted December 2, 2014 Report Share Posted December 2, 2014 1. What is R2A? 2. Based on an approved and non revoked I-140 you are entitled to H1 extensions beyond the initial 6 years in total. 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. 4. Why are you not considering joining the GC sponsor on H1? Link to comment
JoeF Posted December 3, 2014 Report Share Posted December 3, 2014 1. What is R2A? My question as well... Link to comment
ashuneel Posted December 4, 2014 Report Share Posted December 4, 2014 Maybe OP means return to America, I guess. Link to comment
JoeF Posted December 4, 2014 Report Share Posted December 4, 2014 Maybe OP means return to America, I guess. If so, he could write it out. He isn't charged by the letter on the Internet... Link to comment
lolopot Posted December 4, 2014 Author Report Share Posted December 4, 2014 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. Link to comment
pontevecchio Posted December 4, 2014 Report Share Posted December 4, 2014 New employer, new role is fine. Link to comment
ashuneel Posted December 5, 2014 Report Share Posted December 5, 2014 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. Link to comment
JoeF Posted December 5, 2014 Report Share Posted December 5, 2014 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. Link to comment
chakrakr Posted December 5, 2014 Report Share Posted December 5, 2014 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 . Link to comment
JoeF Posted December 5, 2014 Report Share Posted December 5, 2014 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. Link to comment
rahul412 Posted December 5, 2014 Report Share Posted December 5, 2014 There is NO legal requirement to revoke 140 if the position does not exist anymore. Are you sure?? I mean if the job doesn't exists then what's the use of having I140?? Link to comment
chakrakr Posted December 5, 2014 Report Share Posted December 5, 2014 Are you sure?? I mean if the job doesn't exists then what's the use of having I140?? 200% . And Attorneys have clarified in this very forum. Link to comment
chakrakr Posted December 5, 2014 Report Share Posted December 5, 2014 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 . Link to comment
JoeF Posted December 5, 2014 Report Share Posted December 5, 2014 Are you sure?? I mean if the job doesn't exists then what's the use of having I140?? If the job doesn't exist the I-140 would be fraudulent. Link to comment
chakrakr Posted December 6, 2014 Report Share Posted December 6, 2014 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. Link to comment
chakrakr Posted December 6, 2014 Report Share Posted December 6, 2014 If the job doesn't exist the I-140 would be fraudulent. Show us the law which says 140 need to be revoked if beneficiary is fired... Link to comment
JoeF Posted December 6, 2014 Report Share Posted December 6, 2014 200% . And Attorneys have clarified in this very forum. If the job doesn't exist, the I-140 would be fraudulent. And as such, the PD could not be reused. Link to comment
rahul412 Posted December 7, 2014 Report Share Posted December 7, 2014 200% . And Attorneys have clarified in this very forum. Interesting, so I140 still can be filed if the job doesn't exists?? Link to comment
chakrakr Posted December 8, 2014 Report Share Posted December 8, 2014 Interesting, so I140 still can be filed if the job doesn't exists?? 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). Link to comment
chakrakr Posted December 8, 2014 Report Share Posted December 8, 2014 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 . Link to comment
chakrakr Posted December 8, 2014 Report Share Posted December 8, 2014 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 Link to comment
JoeF Posted December 8, 2014 Report Share Posted December 8, 2014 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 Link to comment
JoeF Posted December 8, 2014 Report Share Posted December 8, 2014 Your mentor is back ... correcting your mistakes. I suggest learn the law and do not see fraud everywhere LOL. You have shown again and again that you have no clue about anything. Link to comment
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