Am I Eligible to Return on H1B?


Attorney_22

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This week, Murthy Law Firm attorneys will answer questions regarding situations where a person previously held H1B status, or a previously approved H1B petition, and now wishes re-enter the U.S. pursuant to H1B status. 

 

Rules for Topic of the Week Threads:

 

1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

 

2. The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

 

3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

 

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Hello , 

 

wanted to know in how many ways I can enter back on H1B ... my status is as below ... 

 

I-140 approved and is NOT revoked by that employer,  

have completed more than 6 years in US on H1B,

now it is almost a year that I am out of US

 

 

some thoughts ... do i have to enter back in US ( may be in October 2016 ) under same employer who had my last H1b just because H1 quota is over as of now ?? or I can enter US under any other employer on H1B??

 

Thanks and Regards

Jimmy

 

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I had 6 years of H1B and I-140 was approved in 5th year, based on which I got another 3 year extension. I left India after after 2 years of the 3 year extension in 2013. Can we recapture the remaining 1+ year term of the H1B period? Would it be considered cap exempt, so can it be filed even now or wait until next year's quota starts?

 

Regarding I-140: On USCIS website, I can only see I-140 was approved and even if My ex-company tried revoking, I believe we should be able to use 140 due to Yates memo (I hope).
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Hello,

 

I am in India and have a valid  H1B approved and stamped on my passport more than 2 years ago. I still have more than 6 months remaining on this H1B. I haven't traveled to US on this H1B but intent to come back to USA next month. The Job position for this H1B is still valid and my employer says I can come and take up the position.

 

Can I come back to USA on a H1B which was approved more than 2 years ago?

 

Will I have any difficulty at port of entry since I will be entering USA 2 years after approval of H1B?

 

Do I need to carry any additional documents which they could ask at the port of entry?

 

Thanks In advance for taking the time to answer my questions!

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Hi,

 

I was working in the US on a H1-B from July 2008 to March 2016. Completed my 6 years and since my employer had sponsored me for my green card, I was able to get my 3 year extensions. I have an approved PERM with a priority date of July 2012 and an approved I-140, approved in November 2013. I resigned from this company in March 2016 and I returned to India. My last extension (I-797A) is valid till November 14, 2016. I have a couple of questions for you

 

1. If my visa and my I-140 are not revoked by my former employer, can a new employer apply for a transfer of my H1-B visa so that I do not fall under the H1-B cap? Also, will they be able to use the same priority date for my future green card by filing a new PERM and applying for I-140 transfer?

 

2. If my visa and my I-140 are revoked from my former employer following my resignation, will the new employer have a file a new H1-B, subjecting me to the H1-B cap? Will the new employer be able to port my priority date for a future green card application even if my I-140 is withdrawn by my former employer?

 

Thanks,

John

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Hello , 

 

wanted to know in how many ways I can enter back on H1B ... my status is as below ... 

 

I-140 approved and is NOT revoked by that employer,  

have completed more than 6 years in US on H1B,

now it is almost a year that I am out of US

 

 

some thoughts ... do i have to enter back in US ( may be in October 2016 ) under same employer who had my last H1b just because H1 quota is over as of now ?? or I can enter US under any other employer on H1B??

 

Thanks and Regards

Jimmy

As long as the I-140 petition is still valid/not revoked (as of the current law) you can utilize it for H1B status beyond the normal H1B six year limitation even when that H1B petition is with a different employer than the one that sponsored your I-140. This is true even after being abroad for more than one year.   

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Hello,

 

I am in India and have a valid  H1B approved and stamped on my passport more than 2 years ago. I still have more than 6 months remaining on this H1B. I haven't traveled to US on this H1B but intent to come back to USA next month. The Job position for this H1B is still valid and my employer says I can come and take up the position.

 

Can I come back to USA on a H1B which was approved more than 2 years ago?

 

Will I have any difficulty at port of entry since I will be entering USA 2 years after approval of H1B?

 

Do I need to carry any additional documents which they could ask at the port of entry?

 

Thanks In advance for taking the time to answer my questions!

Yes, technically you should be eligible to enter the U.S. pursuant to the previously approved H1B petition and H1B visa. You will need to bring evidence from your employer that the terms of the H1B are still available. 

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Hi,

 

I was working in the US on a H1-B from July 2008 to March 2016. Completed my 6 years and since my employer had sponsored me for my green card, I was able to get my 3 year extensions. I have an approved PERM with a priority date of July 2012 and an approved I-140, approved in November 2013. I resigned from this company in March 2016 and I returned to India. My last extension (I-797A) is valid till November 14, 2016. I have a couple of questions for you

 

1. If my visa and my I-140 are not revoked by my former employer, can a new employer apply for a transfer of my H1-B visa so that I do not fall under the H1-B cap? Also, will they be able to use the same priority date for my future green card by filing a new PERM and applying for I-140 transfer?

 

2. If my visa and my I-140 are revoked from my former employer following my resignation, will the new employer have a file a new H1-B, subjecting me to the H1-B cap? Will the new employer be able to port my priority date for a future green card application even if my I-140 is withdrawn by my former employer?

 

Thanks,

John

Provided the I-140 is still valid you can use that approval as a basis for a new non-cap-subject H1B petition with a new employer. In addition you can retain that earlier priority date in future PERM green card processes provided it is not revoked for cause (as the law stands currently). If the I-140 has been withdrawn it is advisable to call our office to discuss your strategies. 

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Hi,

 

I graduated with Masters from USA in 2005. I got H1B in July 2006 under masters quota. I worked for 2 months on H1B and in Feb 2007, I came back to India. It has been 9 years since I have been in India. Now, if I apply for H1B will I still be considered under 20,000 cap or cap-exempted quota?

 

Please reply with your comments.

 

Thanks,

Surender

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Hi,

 

I graduated with Masters from USA in 2005. I got H1B in July 2006 under masters quota. I worked for 2 months on H1B and in Feb 2007, I came back to India. It has been 9 years since I have been in India. Now, if I apply for H1B will I still be considered under 20,000 cap or cap-exempted quota?

 

Please reply with your comments.

 

Thanks,

Surender

Historically USCIS has been lenient with this issue. Thereby allowing cap-exempt filings which recapture H1B time that was not fully utilized, even when significant time has passed since last possessing H1B status. However, we have seen USCIS take a more conservative approach lately resulting in problems for those who have not been in H1B status for six or more years. Therefore, it is possible to file a cap-exempt petition, however it will depend a lot on the adjudicating officer whether or not it is approved. 

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Hi,

 

Till yesterday(august 16th 2016) I was on H1B status, but I applied for H4 status 3 weeks back and it got approved yesterday. So currently my status changed from H1B to H4 dependent. Now suddenly I got an inhouse project through my previous employer with whom I had approved H1B. Now if I want to join that project I need to go back to H1B status as soon as possible. What is the procedure to change the status from H4 dependent to H1B and how long it will take ?

 

Thank You

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