H1B - cap exempt- I140

[ZeroGuy]

Hi,

 

My H1B 6 years maxed out in August 2014 and returned to India. My I140 is in pending (filed in december 2014 with july 2014 priority date) and expect it will approved in few months. Can I apply for a cap exempted H1B if my I140  is approved ?

 

Thanks

ZG

 

 

 

[jairichi]

Yes, an employer can file a cap exempt H1B petition based on approved I-140.

[livliv]

Yes, assuming I-140 has not been withdrawn by the employer. You can even apply now to get 1 year extension because I-140 has been pending for more than 1 year.

[Attorney_21]

ZeroGuy:

 

Yes, if your I-140 is approved, you should be able to have an employer file an H1B petition on your behalf, and receive an approval up to three years in duration (without applying under the "cap" again). 

 

Good luck!

[ZeroGuy]

Yes, an employer can file a cap exempt H1B petition based on approved I-140.

My Employer is ready to file for H1B petition.

[ZeroGuy]

Yes, assuming I-140 has not been withdrawn by the employer. You can even apply now to get 1 year extension because I-140 has been pending for more than 1 year.

 

My I797C receipt for I140 says priority date is priority date is July/2014 and notice date is December/2014. So does that consider as my application is pending for one year ?

 

I left USA in August 2014 (after 6 year maxed out) so my 365 days out of USA rule will qualify in August 2015 only. So I can apply after August only. Is that correct ?

[ZeroGuy]

ZeroGuy:

 

Yes, if your I-140 is approved, you should be able to have an employer file an H1B petition on your behalf, and receive an approval up to three years in duration (without applying under the "cap" again). 

 

Good luck!

My I140 is filed in Dec/2014 with priority date as July/2014. Is it possible to change it to priority processing for faster processing ?

[ZeroGuy]

Just want to mention that my PERM/i140 was not submitted before 365 days of expiring my H1B. Does that make any difference ?

[livliv]

I-140 receipt date to determine if it is pending for 1 year. Priority date will be PERM submission date.

 

Staying 1 year outside US is applicable if you want to get fresh 6 years. Petition will have to be filed under cap for that purpose.

 

So, for you H1B petition can be filed once I-140 gets approved or in Dec 2015 when it is pending for 1 year.

[ZeroGuy]

I talked with my Employer attorney and they responded me that

"you were maxed out on the H-1B and had to leave USA. We need to file for a new H-1B for you in 2016."

Now I am losing my hope. Please give some more information ?

[livliv]

I talked with my Employer attorney and they responded me that

"you were maxed out on the H-1B and had to leave USA. We need to file for a new H-1B for you in 2016."

Now I am losing my hope. Please give some more information ?

 

Until I-140 gets approved or pending for 1 year, that is true. Once that happens then your employer can file for extension beyond 6 years. What more information do yo want?

[ZeroGuy]

Thanks livliv for the information. My attorney keep saying that  as I am in India now I do need to have at least two plus weeks to regain. Then approved I140 can be used for an extension. I do not have two plus weeks to regain and  that is why I was confused. 

 

 

 

 

 

Thanks all again for the clarifications.

[livliv]

Two weeks to regain what?

 

Your employer must file an H1B petition for you. They can file that as soon as they receive I-140 approval notice. Even with premium processing H1B petition will require 2 to 3 weeks to get approved. After petition is approved  you will have to apply for Visa using that petition. After Visa is issued, then you can travel to US.

[ZeroGuy]

 

Two weeks to regain what?

 

Your employer must file an H1B petition for you. They can file that as soon as they receive I-140 approval notice. Even with premium processing H1B petition will require 2 to 3 weeks to get approved. After petition is approved  you will have to apply for Visa using that petition. After Visa is issued, then you can travel to US.

 

Thanks livliv, I get what you are saying.

 

Attorney says I am not in USA so they cannot directly apply for H1b extension based on I140. First they need to apply for H1b extension using the remaining two weeks in my H1b and then they have to apply for 3 year extension using I140. Attorney says they are in doubt about this.

[livliv]

You can consult your own attorney and have them talk to your employer's attorney.

[jairichi]

Thanks livliv for the information. My attorney keep saying that  as I am in India now I do need to have at least two plus weeks to regain. Then approved I140 can be used for an extension. I do not have two plus weeks to regain and  that is why I was confused. 

 

 

 

 

 

Thanks all again for the clarifications.

 

Your attorney is partially correct. To file a cap exempt H1B petition based on approved I-140 a few days or weeks are required to recapture on H1B and file for extension. Since you have them you are fine.

[jairichi]

 

 

 

Thanks livliv, I get what you are saying.

 

Attorney says I am not in USA so they cannot directly apply for H1b extension based on I140. First they need to apply for H1b extension using the remaining two weeks in my H1b and then they have to apply for 3 year extension using I140. Attorney says they are in doubt about this.

 

I think recapture of those 2 weeks and extension based on approved I-140 can be filed together.

[Attorney_21]

ZeroGuy:

 

I would consult with an outside attorney - what the company attorney is saying does not appear to be accurate. The approved I-140 would make you eligible for additional H1B time, it doesn't matter whether you are in the U.S. or not - the additional time can be requested in the same petition as the remaining 2 weeks of your 6 years - USCIS has specifically told us that you don't have to file 2 petitions in this situation.

[ZeroGuy]

Thanks experts. I will wait for my I140 approved and will talk to my attorney again.

[ZeroGuy]

Just want to publish the summary what I understood based on discussion with attorney: 

#1 If you exhaust all days of your 6 years H1b, then you need to apply for a new H1b with CAP. 

#2 If you have few weeks left of 6 years of H1B then you can apply for regain of those days. Along with this you can also apply for three year H1B extension with an approved I140. 

In my case I an in India now and only 9 days left to recoup in my expired H1b. Attorney says we can try apply to recoup those 9 days. Along with this we can apply for H1B extension based on the approved I140. They still have to confirm this. 

My I140 is still pending so don't know what and when to happen all of these. 

Thank you

Zero Guy

[jairichi]

Just want to publish the summary what I understood based on discussion with attorney: 

#1 If you exhaust all days of your 6 years H1b, then you need to apply for a new H1b with CAP. 

#2 If you have few weeks left of 6 years of H1B then you can apply for regain of those days. Along with this you can also apply for three year H1B extension with an approved I140. 

In my case I an in India now and only 9 days left to recoup in my expired H1b. Attorney says we can try apply to recoup those 9 days. Along with this we can apply for H1B extension based on the approved I140. They still have to confirm this. 

My I140 is still pending so don't know what and when to happen all of these. 

Thank you

Zero Guy

That is correct.

[kora123]

I am in similar situation. Zeroguy what is your current status? Were you able get H1B with no CAP? And is there any time period for non-CAP h1?

[kora123]

On 8/19/2015 at 11:45 PM, ZeroGuy said:

Just want to publish the summary what I understood based on discussion with attorney: 

#1 If you exhaust all days of your 6 years H1b, then you need to apply for a new H1b with CAP. 

#2 If you have few weeks left of 6 years of H1B then you can apply for regain of those days. Along with this you can also apply for three year H1B extension with an approved I140. 

In my case I an in India now and only 9 days left to recoup in my expired H1b. Attorney says we can try apply to recoup those 9 days. Along with this we can apply for H1B extension based on the approved I140. They still have to confirm this. 

My I140 is still pending so don't know what and when to happen all of these. 

Thank you

Zero Guy

 

I am in similar situation. what is your current status? Were you able get H1B with no CAP? And is there any time period for non-CAP H1B filing like only April month etc?

Edited October 26, 2016 by kora123

[rudraksha123]

I am also in same boat.

I am exiting US on 1st March. My H1B Visa expires on 4th March and the I94 has the date of 14th March (4th March + 10 days ).

Once my I140 gets approved in May (hoping for it) can i file an extension for  the remaining "few" days + 1/3 year ?

 

Can you please let me know if the above can be done ?

 

[Surfer123]

If I understand correctly, you will complete 6 years of H1B on 03/04/2018 (I-140 not approved yet) and so in order to avoid accumulating illegal stay, u are going out of country on 03/01/2018.

If all of that is correct, yes ur employer can file a cap exempt H1B petition for 3 year increments after I-140 is approved. 3 years is max period one can request H1B for - the remaining "few" days is not of any consequence or significance in your scenario.