File H1B cap exempt after 6 years while living in Canada with PR

I am asking these questions on behalf of a friend. Really appreciate any guidance and help!

Situation: As a Permanent Resident, my friend currently lives in Canada and is working for a US company in Mississauga, ON (let’s call it company A). Now he has a job opportunity to move from Canada to the US within company A. Before coming to Canada, he worked in the US in a different company (let’s call it company B) on H-1B visa, for over six years already, and had an I-140 filed and approved with the same company B. The I-140 is still valid and never revoked. Because of country quota, he hasn’t filed I-485 yet.


  1. Will my friend be eligible for a cap exempt H-1B visa, when moving back to the US with company A, assuming company A will sponsor the H-1B visa? Or, does he need to go through the lottery process again for a new H-1B?
  2. Company A will sponsor my friend green card. In this case, will it be possible to relink the PD back to the I-140 filed and approved with company B several years ago?

Hi @Zhen_Dai

You can file H1B transfer or extension without going through lottery using an approved i140. No issues.

You can also port your green card priority date to new employer easily.

A post was split to a new topic: Use old never stamped H1B for change of status from current in L visa staying at USA?

Thank you Anil. However, I heard from a attorney that if you leave U.S. for over one year, you won’t be eligible for cap-exempt H1B. Is that ture?

If the statement is not true, can my friend use H1B (maxed out 6 years) with unrevoked I140 for a new company (company C)?

My friend is very struggle with the timing to back to U.S. because he heard if I140 currenting over one year will be seen as ineffective and he can’t not extend H1B. Is this true? Is the PD still valid even after I140 gets invalid?

Hi @Zhen_Dai

I am not aware of any such rule. Attorney must have told something else and your friend has understood something else.

It would be better if you can ask your friend to explain his question and situation himself.

I had H1 earlier before switching to H4 in May 2015. Is there a time limit on how long I come under H1 quota? Should I go through lottery for COS to H1?

Hi @bvrr557

Please read above discussion.