H-1B extension based on I-140, outside US for more than 6 years


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Hi, I have been living outside US for a little over 6 years now. I have a valid I-140 with visa dates retrogressed. I am under the impression that I am eligible for an H-1B based on my I-140. However, a lawyer whom I contacted, wrote the following in my case:

USCIS allows exemption from the annual cap in the following situations:
(1) was granted H1B status during the past 6 years; OR
(2) is applying from abroad to seek the remaining portion of the 6 years; OR
(3) is seeking an extension beyond the 6 year limit because of I-140 approval or because of LC filing prior to the end of 5th yr while working inside the U.S

He opines that since the last time I held H-1B is older than 6 years, I am not eligible for an H-1B even though I have a valid I-140. Is this the right opinion?

I think point(1) and point(2) in his comments are not mutually exclusive, but dependent. If you are trying to recapture remaining time out of your six year cap, you should have been in H-1B status in last six years. For H-1B based on I-140, no such requirement exists. I quote from one of the lawyer's website, in response to a query where the candidate has been living outside US for more than six years, had only used up 2 years of his total 6 years and has a valid I-140 :

You say you had an I-140 approved–is the priority date current? If not, you will be eligible for an H1b extension regardless of whether or not USCIS takes the position that your H1b is too old to recoup the lost time after your lay off. As long as the petition has not been revoked, you can use an approved I-140 to receive more H1b time at any company until the priority date becomes current.


This tells me that no such requirement of holding H-1B status in last six years holds when the extension application is supported by valid I-140.

Will appreciate responses.


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I have been told that the information that we provide in I-129 about being in States in last six years on H-1B would be used to ascertain the eligibility. It doesn't matter that the extension is sought based on I-140. As long as you are away from US for longer than 6 years, you are not cap exempt.


Any comment on that? Does this information in I-129 make the basis of the cap exempt cases filed for candidates living outside US?



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