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Wednesday, January 8, 2014

Q & A: H-1B Cap after being away from US for one year; H-1B three-year extensions for Company B, based on Company A approved I-140; Re-capturing previously established priority dates

Question: I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year. I now want to return to work for a different employer in H-1B status. Am I subject to H-1B Quota Limitations? Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140?

Answer:

Q: Do I come under H1-B quota or can I apply for H1 without any quota restrictions?

MR: As long as the I-140 was not withdrawn, and you are subject to per-country limitations (your priority date is not current) - your NEW employer (does not have to be the I-140 employer) may file a CAP-EXEMPT I-129 petition on your behalf, seeking CONSULAR APPROVAL for THREE-YEARS.

Do you know if your I-140 was withdrawn after you left your prior employer? Unfortunately, unless you are able to confirm this one way or another, the only way to find out is to actually file the petition with USCIS. Note the USCIS online case status system is NOT updated for withdrawals.

Q: Secondly, is there a way I could use my earlier priority date from labor filing? I am planning to file a EB2 perm labor with a new employer and port the earlier priority date.

MR: Yes, after the EB-2 labor certification (PERM) application is filed and certified by the US DOL, the new employer will file an new I-140 petition on your behalf, which should include a request to re-capture your earlier priority date.

Q: Is that priority date available for me as I have left that employer after my I-140 got approved. Please advise.

MR: It should be available, even if you left, or even if that employer withdrew the I-140 after you left. Note the difference for the 3-year H-1B extension, where withdrawal would likely result in denial.

Withdrawal should NOT prevent re-capturing a previously established priority date. That said, USCIS has been known to effectively say, "if the prior I-140 was withdrawn, there is no priority date to re-capture." So if possible, and if you know your I-140 has been withdrawn, your immigration counsel should prepare an argument based on available guidance, that you are in fact eligible to re-capture despite the withdrawn I-140.

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I wish you the best of luck. Please let us know if we can be of any further assistance to you.

Sincerely yours,

Michael


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