Is it possible to return home after I-140 approval and come back without going through lottery

[TechWorker1]

Situation is like this:

My I-140 has been approved during my second 3 year term of my very first H-1B visa. I stayed with that employer another 2 years after approval of my I-140. Then another employer transferred my visa (and got another I-140 approved) and I am currently working for them. I am in the US for 12 years now.

At home, I have a very sick family member I am very close to. Doctors say, she doesn't have much time but at the same time she may go in the next month or she may end up living for another 3-4 years depending on how she responds to the treatments. I want to be with her before she passes away.

If I go home today and my loved one lives for another 4 years, with me by her side, do I have to go through the H-1B lottery when I want to come back to the US? Possibilities are, my current employer may want to hire me back, as we are in very good terms and they are sympathetic, but let's say things change with their management and they can not hire me back but I can find another company which can. Do they need to go through the H-1B lottery to hire me ?  I read on different forums very different answers.

Thank you.

Edited July 14, 2020 by TechWorker1
typo errors

[User099]

You don't need to go thought the lottery again. New employer can apply for a H1 on the basis of your approved I140.

 

[gopalakrishnach]

do I have to go through the H-1B lottery when I want to come back to the US? --- No need since I140 is approved and I am sure it will be active.

Do they need to go through the H-1B lottery to hire me ? - Nope. Using I140 any new employer can submit new petition anytime during the year.

[KVT_BK]

Thanks @User099

I read somewhere that I-140 has more about GC rather than Visa. The only way H1B visa is connected with I-140 is through AC21, which grants extension of H1B based on approved I-140. Correct me if this assumption is wrong.

Since user already mentioned that he is US for 12 years, I am assuming he already maxed out 6 years on H1B and based on AC21, going through extensions. 

Based on it, During his 4 years stay outside US, If @TechWorker1 H1B is revoked by employer, doesnt user need to go for fresh H1B (CAP counted and lottery). I believe I-140 do help in recapturing old priority date, but cant allow recapturing H1B that is already revoked. An I-140, 6 months after approval do allow @TechWorker1 to apply for GC when his priority date is current, assuming his employer still honors I-140. But may not grant a cap exempted H1B Visa.

Please correct me if i am wrong.

 

[User099]

5 hours ago, KVT_BK said:

Thanks @User099

I read somewhere that I-140 has more about GC rather than Visa. The only way H1B visa is connected with I-140 is through AC21, which grants extension of H1B based on approved I-140. Correct me if this assumption is wrong.

Since user already mentioned that he is US for 12 years, I am assuming he already maxed out 6 years on H1B and based on AC21, going through extensions. 

Based on it, During his 4 years stay outside US, If @TechWorker1 H1B is revoked by employer, doesnt user need to go for fresh H1B (CAP counted and lottery). I believe I-140 do help in recapturing old priority date, but cant allow recapturing H1B that is already revoked. An I-140, 6 months after approval do allow @TechWorker1 to apply for GC when his priority date is current, assuming his employer still honors I-140. But may not grant a cap exempted H1B Visa.

Please correct me if i am wrong.

 

If the I140 is approved for 180 days, it can be used for applying for H1 beyond 6 years. I140 can be with an old employer or even if its withdrawn, it can still be used to apply for a new H1. This can be done as long as the I140 PD is not current.

[KVT_BK]

1 hour ago, User099 said:

If the I140 is approved for 180 days, it can be used for applying for H1 beyond 6 years. I140 can be with an old employer or even if its withdrawn, it can still be used to apply for a new H1. This can be done as long as the I140 PD is not current.

I understand that I-140 can be used for applying a new H1B. But the question is does the new H1B is cap exempt or has to go through lottery considering H1B revoked by employer during the 4 years?

[User099]

21 hours ago, KVT_BK said:

I understand that I-140 can be used for applying a new H1B. But the question is does the new H1B is cap exempt or has to go through lottery considering H1B revoked by employer during the 4 years?

It will be cap exempt. 

[RDesai]

Am I correct in inferring that a person whose I-140 is approved, can leave the US for a couple of years and re-enter upon finding a new employer who is willing to file an H1b petition for them (to be filed based on approved I-140)? 

[User099]

On 7/28/2020 at 4:13 PM, RDesai said:

Am I correct in inferring that a person whose I-140 is approved, can leave the US for a couple of years and re-enter upon finding a new employer who is willing to file an H1b petition for them (to be filed based on approved I-140)? 

Yes, that is right. I140 need to be approved for more than 180 days and should not have been withdrawn before Jan 2017.