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Immigration Issues/H1B - Claiming Cap exemption + 3 Yr Extension based on Approved I-140

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Question
QUESTION: Dear Sir,
I need to know that If I want to claim for H1B - Remainder time then latest by when should I get the petition file?
Say for example I got My Initial H1B Petition approved in 2005. Came to the in Feb 2006 and left US in March 2010 and then after never came back until today in the US on any of the H-status.

Now if I am looking for my new employer to file for H1B petition, can I do so under CAP-EXEMPT category and claim H1B-Remainder period?
If yes, latest by when should I get this petition filed??

Thanks,
H1B-Remainder applicant

ANSWER: Hi,

The 6 year H1B clock started on your entry to the U.S. (Feb. 2006) and stopped when you departed in March, 2010. If you were absent from the U.S. for at least one year from the time you departed the U.S. in March 2010, then you are entitled to a new 6 year clock in H1B status but you will be subject to the visa cap or alternatively (your choice) you can select the remainder of the 6 year option. These rules are applicable to both H1B cap-subject and cap-exempt employers.

If claiming under the H1B remainder option, the H1B petition must be filed no later than six years from the last time (March 2010) that you were in H1B status, so it should be filed no later than Feb. 2016.

if the employer filing an H1B petition for you at this time is cap-exempt, it is probably more advantageous to not request the remainder option, allowing you a full six years in H1B status (based upon your absence from the U.S. for at least one year starting March 2010) and the employment start date can be anytime since the employer is cap-exempt anyway.

---------- FOLLOW-UP ----------

QUESTION: Dear Sir,

Thanks for addressing the above concern of mine.
Further May I know that when we claim for the Remainder period under H1B Cap Exemption rule, If I already have I-140 approved (under EB3) Can I request for the 3 year extension as well WITH A NEW EMPLOYER?

My I-140 is approved with my old employer that I left in March 2010. If I do so and for some reason It gets rejected Am I risking my I-140 eligibility to port my date in future?



Thanks,
H1B - Remainder Claimant + I140 approved.

Answer
Hi,

With I-140 approval, extensions of H1B status in 3 year increments (even with an employer other than the employer that sponsored the I-140 petition) beyond 6 years are no problem.

The priority date as stated on the original I-140 approval notice can always be ported to another employer sponsorship case, even if the original I-140 employer revokes its I-140 petition, or if the H1B petition by any employer is denied.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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