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H-1b Eligibility Based On Approved I-140 (outside Us For More Than 6 Years)

Discussion in 'AC 21 H-1B Issues' started by sanjay_lal, Sep 16, 2015.

  1. sanjay_lal

    sanjay_lal New Member

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    Hi Ron, I've a valid I-140 (EB2, India) with priority date Oct, 2007. I left US in Feb 2009. I've been in India since then. Recently, the priority dates for India got retrogressed to '05-'06 time frame.I've been told that if the priority dates are retrogressed, one can file for a cap exempt H-1B even though he/she is not presently in US (and not holding an H-1B). Is that true? If yes, under what rule?

    I first entered US in Jul 2000 (was counted under 1999 visa cap). Used up all my 6 years (including the time I spent while on vacation outside US) and then filed extension based on labour twice for one year. Later, I got the I-140 and used the I-140 to get a three year extension with a new employer. However, left within 4 months.

    thanks
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Since you haven't had an H petition approved on your behalf within the last six years, you are now subject to the cap.
     
  3. sanjay_lal

    sanjay_lal New Member

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    Would my eligible I-140 not make me cap exempt? I don't understand the six year rule that you mentioned. I read the USCIS "Interoffice memo" dated "Dec 5, 2006". It doesn't say anything about "having the H petition in last six years".rule. Pardon me if I am missing something in that document.
    thanks
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Read the form, that's where you will find it. No, your I-140 does not make you cap exempt.
     
  5. sanjay_lal

    sanjay_lal New Member

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    Ron, thanks. I have only been able to find the clause "having been outside the United States for more than a year", but nowhere I could find "greater than six years". Request you to point me to the right section in that document.
    Greatly appreciate your help.
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It is in the I-129H supplement where they ask for all travel in the last six years. Their position is that if your H status expired more than six years ago, you are subject to the cap. If you want to fight them, file a petition and when it is denied, litigate it in federal court.
     
  7. sanjay_lal

    sanjay_lal New Member

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    No intention to ligitate, especially from outside US :)
    Thanks for clarifying my doubts.

    regards
     
  8. tiredofthis

    tiredofthis New Member

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    Here is another question, Ron:

    Do you know if a person leaves the country during their 6th year on H-1b with having Labor approved and I-140 pending.

    Then I -140 gets approved 3 months later, by this time the person is out of the country.

    Can this person, 2 years later, re-enter on a H-1b cap exempt visa SOLELY on the basis of an approved I-140 OR do they re-enter based on remaining time of the initial H-1B OR do they have to stay out until their I-485 is current?
     
  9. GVICTOR078

    GVICTOR078 New Member

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    Hello Ron,

    I have a similar question as "tiredofthis" member.
    my case
    L1 start date = 04 OCT 2010
    H1 conversion start date = 04 OCT 2013
    H1 expiry date = 17 DEC 2016 (including all recap)
    Green Card Process Yet to start.
    My employer says i have a 95% chance of my I 140 approved before 17 DEC 2016 with premium processing of I 140.

    If i fall in the 5% category, and have to leave USA, can i come back to USA when my I140 gets approved?
    do i need to go through a fresh H1 application, exempt limit etc...?

    Thanks in advance for all your support
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You will need a new H1 petition.
     
  11. GVICTOR078

    GVICTOR078 New Member

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    Thank you Ron.
    For clarity let me ask for your confirmation on the below statement.,

    A new H1 that will have to be applied after the 1 year wait period which will be subject to yearly cap. - am I correct?
     
  12. DonDraper

    DonDraper Guru

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    Yes you will be subject to the cap.
     
  13. Santy

    Santy Guru

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    You will not be subject to cap. If your labor is filed before completion of 6 years then You have several options, couple of which I am stating:
    1. If labor is not approved, Go out of US at the end of 6 years and count 365 days from when your labor was filed. You can come back on a 1 year H1 extension, you are not subject to any cap here.
    2. If your labor gets approved before completion of your 6 years then you get 1 year extension till your I140 gets approved/rejected. You don't need to go out of US in this case.
    3 Happy path: Labor and I140 gets approved before 6 years completion, you get 3 years extension till your date become current. Needless to say that your documentation for H1B extension should be strong to eliminate the possibility of rejection...
    HTH
     
    Last edited: Dec 1, 2015
  14. DonDraper

    DonDraper Guru

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    Incorrect. He is subjected to cap. He has not been on h1b in the last 6 years which makes him ineligible for cap.
     
  15. GVICTOR078

    GVICTOR078 New Member

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    Thanks for all your replies.
    Is the cap applicable because my 6 year stay = H1 + L1 ?
     
  16. Santy

    Santy Guru

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    GVICTOR078 never stated that he is out of H1B for the last 6 years. He said that his labor will be filed before the completion of his 6 years term. He is not subject to any cap as he is still in US on H1B and plans to file labor before 6 years term.
     
    Last edited: Dec 1, 2015
  17. Santy

    Santy Guru

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    If you are in H1B right now and plan to file labor before your 6 years completion then you are safe. You are cap exempted. All my above options/scenarios fit your case... You are safe buddy.
     
    Last edited: Dec 1, 2015
  18. GVICTOR078

    GVICTOR078 New Member

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    Santy,
    Thanks for the Reply.


    as mentioned by you we have 3 options.
    1. If labor is not approved, Go out of US at the end of 6 years and count 365 days from when your labor was filed. You can come back on a 1 year H1 extension, you are not subject to any cap here.
    2. If your labor gets approved before completion of your 6 years then you get 1 year extension till your I140 gets approved/rejected. You don't need to go out of US in this case.
    3. Happy path: Labor and I140 gets approved before 6 years completion, you get 3 years extension till your date become current. Needless to say that your documentation for H1B extension should be strong to eliminate the possibility of rejection...

    Option -2:
    Upon my search found that option 2 is applicable for an approved I-140 petition not a Approved Labor.
    Just wanted to have your confirmation on this.

    Option -1:
    I understood this completely.

    Again thanks for your time :)
     
  19. Santy

    Santy Guru

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    Option-2 statement is perfectly fine and TRUE that if your labor gets approved while you are in US on H1 before completion of your total 6 years then you don't need to go out of US. You can apply H1B extension based on approved labor and you get one year extension . Aproved I140 gives you 3 years of extension. Please remember that these are thumb rules and your H1B extension will always depend on client letter, duration of projects, etc.
    Your primary goal at this point should be to apply labor as soon as possible. Remember that even if you start your GC process today, it will take 3-4 months for the initial paper work before you get to apply for LC. Time is the key.
    HTH
     
    Last edited: Dec 2, 2015
  20. Santy

    Santy Guru

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    GVICTOR078: Please NOTE that I am not a lawyer and that you should always take 2nd and 3rd opinion. These statements are all based on my experience but the experience is so robust that if there comes a rule tomorrow that you can apply for I485 if you have a total of 5 or more LC and I140 then I can apply AOS tomorrow only. Jokes apart, I wish that your 140 gets approved while you are in US. You will get to know the taste of pleasure and pain at the same time.
     
    Last edited: Dec 2, 2015
    GVICTOR078 likes this.

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