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You can file an H1B extension after 6 years easily with approved i140. This will be cap-exempt.
- With approved i140, you are eligible to file 3 year H1B extension.
- With approved PERM and pending i140, you can only file a 1 year H1B extension, and that too if PERM was filed 365 days ago.
- With pending PERM filed 365 days ago, your Employer can request a 1-year extension for you before the end of the 6th year.
- With no PERM or i140, you cannot extend H1B in the 7th year. You should leave the US at the end of the 6-year quota. You can stay outside the US for 365 days and can apply for H-1B again in the cap-subject lottery.
Most high skilled workers on L1A visas in the US are eligible for the EB1C manager fast green card category. But, since, it is backlogged for Indians and China-born people, they change their status to H1B after L1’s quota is over.
I140 PD date can be ported to retain your spot in the GC queue.
PERM and i140 can be filed even if you are outside the USA after the 6th year.
Example:
PERM and i140 can be filed and approved even if you left the US to work from India.
This article will discuss:
- i140 Pending
- H1B Transfer with i140
- Employer Revokes i140 after H1B Transfer
- Leave the US, Come Back In Future?
- FAQ
i140 Pending
My suggestion is to upgrade your i140 application to premium if you are on the verge of reaching your max out. Get approval in 15 days and immediately file an extension.
If you cannot file a premium upgrade like in the case of EB1-C, you should try to recapture your vacation time to push the 6th year-end date forward. This is a strategy suggested by attorneys as USCIS allows you to reclaim your days spent outside the USA as legal H1B time.
If you have zero days left to recapture, you can:
- Visit Canada or Mexico for a short term like 30-60 days before the start of the 7th year. You can use AVR to return to the US within 30 days.
- Visit a home country like China or India and then come back to the US and extend your 6th-year end date.
H1B recapture means filing an H1B extension to push your 6-year end date forward by utilizing your holidays spent outside the US.
H1B Transfer with i140
You can request i140 information directly from USCIS if your employer is not sharing it.
#1 I-140 Pending
You can file an H1B transfer while your i140 is pending approval.
I-140 petition is for a future job with Employer A and hence, unless I-140 is explicitly revoked by your Employer A (current employer), the petition remains valid and will reach a decision stage someday.
You can do an H1B transfer and can start working with Employer B anytime your i-140 is pending.
#2 I-140 Approved
You can file an H1B transfer with approved i140 and get a 3-year extension after a 6-year quota.
Your employer A can revoke the I-140 if 180 days have not passed from the date it was approved.
You can use your I-140 priority date to port to new employer B.
Employer Revokes i140 after H1B Transfer
#1 I-140 revoked before approval
You cannot use i140 for an extension if it has been revoked by the employer before its approval.
#2 I-140 revoked after 180 days of approval
You can use the approved I-140 to maintain your priority date with new Employer B by filing a new PERM and I140.
#3 I-140 is approved and NOT revoked by Employer A
You can use the approved I-140 to maintain your priority date with new Employer B by filing a new PERM and I140.
You can join Employer A as and when your Priority Date becomes current and file your I-485 for a green card.
If your Green card priority date from EB2 is current in the EB3 chart, you can file EB2 to EB3 downgrade by filing a new EB3 i140 using EB2 PERM.
Leave the US, Come Back In Future?
You can leave the US and come back anytime in the future through a current or a different employer once your date is current.
The only thing to take care of is your i140 should not be withdrawn. The best way to ensure this is to stay with the current employer for at least 180 days after i140 approval.
- i140 stays valid until your Green card priority date gets current.
- The current USCIS rules say that you should file your Green card application within 1 year of your date getting current.
Many H1B workers in the US are currently filing Canada or Australia PR and are moving there with approved i140 in hand. They plan to return to the US once their EB2 or EB1 priority date is current and they can file i485 Adjustment of status.
Can I file H1B Extension Cap Exempt Anytime?
Many people also return to their home country like India or China and plan to come back to the USA later.
In this case, you can file an H1B extension as cap-exempt if you have an approved i140.
- There is no expiry date mentioned on the I-140 approval.
- You can use it with as many employers as you want until your date of the green card gets current.
FAQ
What’s the difference between I140 Withdraw vs Revoke after 180 Days?
Your employer can withdraw your i140 once you leave them. USCIS allows porting your green card priority date to a new employer with a new AC21 rule modification done in Jan 2017.
Your i140 stays valid if it has not been withdrawn by the employer within 180 days after its approval. You can use the withdrawn i140 as many times as you want to extend or transfer your H1B.
USCIS only revokes i140 if they find fraud or misrepresentation by your employer after 180 days. You cannot use the i140 if it has been revoked.
Employers may request the i140 withdrawal even after 180 days. Do not worry if the USCIS case status shows as ‘withdrawn’ online. You can use the withdrawn i140 to port your date and extend H1B.
Can we transfer I-140 to New Employer?
I-140 is tied to the employer and its job offer. I140 cannot be transferred. You can PORT the priority date to new employer B though.
You can also use an approved I-140 from an old employer to apply for H4-EAD.
Can I leave and come back to the US in the future with an Approved i140?
You can come back to the US anytime in the future by filing an H1B transfer or extensionusing your approved i140.
Is New i140 Required after H1B Transfer?
You can keep using the approved i140 from the old employer until your Green card priority date is current.
This means that you will need a new i140 for a new employer to file an i485 adjustment of status. The good news is that i140 and i485 can be filed concurrently once your green card priority date is current.
Example:
Your approved i140 from employer A can be used to extend or transfer H1B to employer B, C, or Z any number of times.
You will need a new PERM and i140 only at the time of filing the i485 adjustment of status for a green card.
Do I need a new PERM and PWD to port the i140 date to a new employer?
Yes, you do need to file a new PERM, PWD, and i140 for a new job with a new employer.
The PD date can be ported and you can do this process at the time you expect your date to get current.
Use approved i140 from Employer A to port Date with Emp C when Emp B did not file i140?
You can use your approved i140 from employer A to port your GC date with employer C even if employer B did not file i140.
This is a common question when you have changed jobs from employer to B and then thinking of filing an H1B transfer with employer C.
Can we Apply H4 EAD with withdrawn i140?
You can apply for H4 EAD even if the approved i140 was withdrawn as long as the i140 has not been revoked for ‘fraud’ or ‘misrepresentation’.
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FAQs
How to apply H-1B after 6 years to recapture unused time? ›
What is the Process? The form to file is Form I-129 requesting an extension on your stay in the United States. Form I-129 is filed by the H1B employer. Essentially, any time during your six years that was NOT spent in the United States can be recaptured.
Do you qualify for an H-1B extension beyond the six year maximum? ›Under AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the alien's behalf ...
What happens after your 6 years of H-1B? ›Once H1B holders reach that six-year maximum, they must leave the U.S. and remain outside for at least one year before being eligible for a new six years of H1B. Furthermore, in order to return to the U.S. in H1B status, they have to go through the H1B Cap again by surviving the H1B lottery.
What time counts toward the H-1B six year maximum? ›First, only the time the worker spends in the U.S. in H-1B status counts toward the six years. Any time spent outside of the country does not count, even if the person leaves and reenters the U.S. with an H-1B visa.
How long does USCIS allow for H-1B recapture? ›The six-year maximum stay period is the total number of days you were present in the U.S. This means that for every full day (24 hours) you are outside the U.S., you are eligible to recapture that time when you come back.
How do I file H-1B recapture time? ›- Copies of Stamps in Passport given at Port of Entry,
- Copies of Stamps in passport related to country where you live.
- Arrival Departure Records ( I-94 Cards ) or Electronic I-94 Cards.
- Airline Tickets, Boarding Passes.
You can file an H1B extension after 6 years easily with approved i140. This will be cap-exempt. With approved i140, you are eligible to file 3 year H1B extension. With approved PERM and pending i140, you can only file a 1 year H1B extension, and that too if PERM was filed 365 days ago.
What is H-1B reset of 6 years? ›The normal maximum amount of time a foreign national can remain in the U.S. in H1B visa status is six years. Once the six year cap is reached, the foreign national must be physically outside the U.S. for one full uninterrupted year in order to “reset” the 6 year clock.
Can H-1B be extended after I-140 approval? ›The foreign professional is able to apply for an H-1B visa extension status for up to 3 years if the applicant has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.
Can I reapply H-1B after 6 years? ›If the H1-B holder has filed for Labor Certification application or for an I-140 petition 365 days prior to reaching the 6 year limitation provided the petition is not denied, the H1-B holder can extend his or her status on an annual basis beyond the 6 year limitation.
Can H-1B filed again after 6 years? ›
The answer is YES; you can continue the extension until a final decision is made to approve or deny your pending I-485 application if: Your PERM petition (labor certification application) or I-140 petition have been filed at least 365 days before you reached your six-year limit of H-1B time, and.
Can we filing PERM after 6 years of H-1B? ›Some people may assume that it is difficult to file a PERM Labor Certification, if one is in the 6th year of H-1B status already, but actually Labor Certification can be filed at any time, even in the 6 years of H-1B status in U.S.
How long is unused approved H-1B petition valid? ›H-1B status is approved initially for a period of up to three years. It can then be renewed for up to another three years.