H1B processing with approved I140

[pravinp]

Hi All,

Appreciate any help you can provide to clarify my below query.

I was working in US for company A as a transfer from offshore center. Below are important dates,

1) March-2007 to Nov-2011: L1B (multiple entries and exists during this period but no continuous 1 year outside of US)
2) Nov-2011 to Nov-2012: H1B after my company filed for L1B to H1B visa transfer
3) Nov-2012 to April-2013: approved H1B extension valid from Nov-2012 to May-2015

I resigned from Company A to return to India in April 2013 and had been working for Company B in India since then. Meanwhile, Company A has revoked my H1B petition in Sept 2013. I don't have H1B visa stamped on my passport.

My GC processing dates are,
1) Category: EB3
2) PERM Filling: Oct-2008.
3) I140 Approval Date: Sept-2011. The I140 petition still shows as approved in USCIS site that means Company A has not revoked my I-140.

My questions are,
1) Can I apply for a new cap-exempt H1B from Company B as my I-140 is approved and I have not exhausted my 6 years under the previously approved H1B?
2) Can Company A (my original employer) apply for cap exempt H1B if I join them back?

Indeed appreciate your help.

[raghvi]

Hi All,

Appreciate any help you can provide to clarify my below query.

I was working in US for company A as a transfer from offshore center. Below are important dates,

1) March-2007 to Nov-2011: L1B (multiple entries and exists during this period but no continuous 1 year outside of US)
2) Nov-2011 to Nov-2012: H1B after my company filed for L1B to H1B visa transfer
3) Nov-2012 to April-2013: approved H1B extension valid from Nov-2012 to May-2015

I resigned from Company A to return to India in April 2013 and had been working for Company B in India since then. Meanwhile, Company A has revoked my H1B petition in Sept 2013. I don't have H1B visa stamped on my passport.

My GC processing dates are,
1) Category: EB3
2) PERM Filling: Oct-2008.
3) I140 Approval Date: Sept-2011. The I140 petition still shows as approved in USCIS site that means Company A has not revoked my I-140.

My questions are,
1) Can I apply for a new cap-exempt H1B from Company B as my I-140 is approved and I have not exhausted my 6 years under the previously approved H1B?
2) Can Company A (my original employer) apply for cap exempt H1B if I join them back?

Indeed appreciate your help.

When you say your 6 years has not exhausted, have you included your L1 stay too while calculating it?

[pravinp]

When you say your 6 years has not exhausted, have you included your L1 stay too while calculating it?

Thanks Raghvi for your response.

I did include my L1B stay in the calculation. Below are detailed in and out dates from US.

Date of Entry - US Date of Exit -US Days Inside US Visa Type
11-Mar-07 25-Oct-08 594 L-1B
23-Nov-08 9-Feb-09 78 L-1B
27-Jun-09 24-Aug-09 58 L-1B
31-Jan-10 13-Mar-10 41 L-1B
23-Aug-10 17-Nov-11 451 L-1B <-- Still in US but switched to H1B from L1B
17-Nov-11 2-Apr-13 502 H1B

Total days inside US 1724
Total Months inside US 57.47

As you can see, I have stayed total of 58 months in US including both L1B and H1B. So I have 14 more months to exhaust 72 months on H1B (12 months x 6 years). Now the question is whether I can get a cap exempt H1B with approved I140?

[raghvi]

Thanks Raghvi for your response.

I did include my L1B stay in the calculation. Below are detailed in and out dates from US.

Date of Entry - US Date of Exit -US Days Inside US Visa Type
11-Mar-07 25-Oct-08 594 L-1B
23-Nov-08 9-Feb-09 78 L-1B
27-Jun-09 24-Aug-09 58 L-1B
31-Jan-10 13-Mar-10 41 L-1B
23-Aug-10 17-Nov-11 451 L-1B <-- Still in US but switched to H1B from L1B
17-Nov-11 2-Apr-13 502 H1B

Total days inside US 1724
Total Months inside US 57.47

As you can see, I have stayed total of 58 months in US including both L1B and H1B. So I have 14 more months to exhaust 72 months on H1B (12 months x 6 years). Now the question is whether I can get a cap exempt H1B with approved I140?

If i140 is not revoked, then it is possible. Do you have a copy of the I140 approval notice?

This is my opinion not legal advice.

[pravinp]

If i140 is not revoked, then it is possible. Do you have a copy of the I140 approval notice?

This is my opinion not legal advice.

Thanks.

I-140 is not revoked as I still see it as approved on USCIS site using my receipt number. I don't have the I-140 approval notice though. I just have the I140 receipt number. My previous employer told me that I-140 is notice for employer and did not provide a copy of I-140.