Approved i140 - Leave US and come back later through a different h1b employer?

USA H1B
1

I have approved i140 and currently on H-1B in my 5th year.

Can I leave the US and come back later through a different employer (not from the same employer with whom I have my current H-1B and I140 approved) once my date is current?

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2

You can file H1B transfer anytime from within or outside USA using your approved i140 anytime in future.

Just make sure that you work with your current i140 employer for at-least 180 days after i140 approval to make it revoke free.

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I have already completed around 3 years with my current employer on approved I140 (PD: April 2016) . So in that case, if I leave my current employer and United States now, it would be safe to come back.

Also, Can you please help me pointing (based on your experience) any attorney who delath with similar situations in past and can help me. I am looking to hire a attorney who can help me process my petition when needed.

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4

I do not have any attorney to refer at this time.

Whenever you will need to file a new H1B, usually the employer will have their attorney.

6

OK, no worries.

But overall, If i go out and try to come back later on, legally I should be able to… is that correct understanding ?

Also, do you have any of your blog (or someone else’s blog) link which outlink the who process , where if one goes out of States, what all he need to do to come back, like finding employer, and all other unknown or easy to skip details.

Thanks in advance.

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Yes, legally, you can come back.

You will need to find an H1B employer who can sponsor your H1B visa. That’s it.
Everything else remains the same as you would have got the H1B earlier.

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So in that case, do I need to maintain my H-1B status too, like keep on renewing H-1B until dates are getting current. I was reading somewhere, where it was mentioned that you need to keep your H-1B active (either with your current employer or some other employer) else your i140 will be invalid.

And for that my doubt is, if you are out of country and also left employer, how cam H-1B can be keep running.

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As I already said, legally you can stay out of country and still keep your i-140 active.

i-140 once approved stays active unless it is explicitly withdrawn. Also, i-140 is for future job position based on the assumption that your employer will have the position to offer when your GC date gets current.

You will need to file a new i140 with the employer at that time to finally file i485 (Green card).
The current approved i140 can be used to extend H1B any number of times.

I cannot comment on what you have read on other blogs/forums.

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Hi Anil,

On the same topic above, is it possible to come back to US even after expired H1B and if I have completed full 6 years quota. ?
If yes -
Do I need to come back within an year to avoid H1B cap-exempt?
If I come after 2-3 years to US, will I have to go through the H1B lottery again?

Regards,
SJ

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You need to have approved i140 to come back to USA without cap-exempt.

If you do not have i140, then you need to stay out of US physically for at-least 365 days. You will need to go through H1B lottery again in this case after 365 days.

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Thanks Anil,
Yes, I have an approved i140 + 180 days completed and also completing 6 year quota this month and returning back to India for 1-2 years.
From your answer above, can I assume that its possible to return to US with H1B cap-exempt (no lottery) anytime in future, say after 2 years ?

Thanks.

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Hi Anil,

I am also in the same situation and having very similar question.

But what I understand is If I-140 application is approved and more than 180 days completed then our H1-B extension are cap-exempted and we can renew anytime. No need to keep on renewing H1-B visa by applying extension. The moment we will came to know that priority date is going to become current (let’s say 1 or 2 year before) then apply for H1-B extension and come to USA for COS (Change of Status)/I-485 processing.

For e.g: Take my case I have I140 approved +180 days completed and my visa is going to expire in October 2020. If I am going back to india in Jul or Aug and will not file extension would not be an issue. I can file any time later when I want if I am working with my current employer. In case if I have changed my employer then new employer should be ready to file I-140 approval again and would be ready to file H1-B extension as well when I want.

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Hi @Anubhav_Saxena

Your understanding is correct.

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Hi Anil,

In my case I am not willingly wanting to leave but kind of stuck in a situation. VISA/i94 expiring May 14th 2020, and got laid off yesterday. My H1B extension was kept dragging and was not filed in time. I140 is approved and PD is August 2016. Have been with same employer since 2010.

  1. HR said they can extend end date to 06/30/2020. But now as my layoff is announced, H1B extension cannot be filed by same employer?
  2. If I have to leave US by May 14th, Can I come back to US with another employer sponsoring H1-B, and I will be cap-exempt category? Or I will have to go through lottery?
  3. With the new employer do I have to file I140 again? Will if affect the Priority Date?

Thank you very much for helping others. You are doing great work!

Thanks.

19

Thanks Anil for clarifying the doubts.

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Hi @Anil.Gupta,

Thanks a lot for helping many people on this question.
Extending @Anubhav_Saxena 's question. What if your old employer revokes the remaining period of your h1b?
Then new employer can’t file for h1 transfer, but can the new employer file a new h1b visa since you have already i140 approved from previous employer without being subjected to lottery again?

The gap year in this case, let’s say > 1 year.

Thanks a lot, really appreciate your responses
Regards,
Manoj

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Hi @Tammali_Manoj

You are eligible to apply H1B Transfer even if old Employer revokes the H1B.

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Thanks @Anil.Gupta, really appreciate your help on this.

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Hi @Anil.Gupta

My situation is I am in end of 5th year (Last month of 5th year And have 1 year left for max out 6 years) of my H1 and it is valid till oct 2020, my i140 filed on last month April 2020 and waiting for i140 approval . my last date of my current job is May 29th 2020 ( this month).

Can I leave US next month Or after my i140 approved . does it impact my i140

I have no intention of changing my employer and I don’t want my H1 to keep running or do an extension while I am in india.

Can I stay in india without changing current employer for 180 days after i140 approval , does it impact my i140 or it is mandatorily need to work in US after i140 approved for 180 days.
Else After 180 days or more can I come back to usa with my current employer or new employer

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Hi @Anil.Gupta since this is a big move for me, just wondering if you know any good immigration lawyer, that i can talk to and confirm the same?

Thanks again man.