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H1B cap exemption and approved I140

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  • H1B cap exemption and approved I140

    My I140 was approved in Jan 2007 under EB2 category. I moved back to India in 2008, now want to relocate USA, for that I have two queries:
    1. Can I convert my case to consular processing? Is there any complication in this conversion?
    2. In case if I consider H1 option, my H1 petition will be under cap or cap exempt as my I 140 is still approved.
    Any help is highly appreciated.

  • #2
    Originally posted by rkindt View Post
    My I140 was approved in Jan 2007 under EB2 category. I moved back to India in 2008, now want to relocate USA, for that I have two queries:
    1. Can I convert my case to consular processing? Is there any complication in this conversion?
    2. In case if I consider H1 option, my H1 petition will be under cap or cap exempt as my I 140 is still approved.
    Any help is highly appreciated.
    1. Yes. No complication.
    2. Your approved I140 does not matter. You will not be cap exempt since you did not have a valid H1 in the past 6 yrs.
    Just an opinion; Not legal advice.

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    • #3
      Approved I-140 and H1B CAP exemption

      I have I140 approved in 2015 and I was in the USA on H1B for 1 year - and on L1 for 5 years with employer A. Then I moved back to India in 2016.
      My H1 visa is still valid till March 2019. Now I am working with employer B and want to file for H1B extension with another employer(B) from India. I have few questions:
      1. am I applicable for CAP Exempt
      2. If Employer B files for my H1 visa in CAP Exempt - what will happen to my I-140? will that is required to be transferred to Employer B or it can remain with employer A?
      3. If I get H1B from Employer B - can my spouse apply for EAD based on I-140 applied by employer A?

      Please advice.

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