H1b extension after leaving USA

I have an approved i-140 and stayed in USA for about 10 years(H1B 6 years+3 year extension). I am outside USA for the past 4 years and trying to re-enter USA. My Current employer is saying that I am not eligible for H1B Cap Exempt processing due to the below reasons. Can any one please confirm?

  1. I exhausted my 6 years of H1B before I left USA. Stayed over 10 years (based on approved i-140 for few years). Since I do not have any visa period left, my employer says that, it should be a new H1b Cap and cannot go through Cap exempt

  2. My employer also says that, H1b Cap Exempt can be done only within the first year outside USA. Since, It is 2 years since I left USA, I am not eligible

I was the under the impression, once you have an approved i-140; you should be able to use that for H1b Cap exempt processing until your date becomes current. Please clarify

With approved I-140, your employer can file cap-exempt H1B and the same may be approved for 3 years.

Same as above, no time limit unless your priority date is current in which case you can get 1 year extension.
Talk to your employer’s immigration lawyer as the HR may not be aware of AC21 extensions.

Thank you Kalpesh! I got a better clarity now.

Can you confirm one more thing. If I opt for consular processing, do I need a job offer letter from onshore or I can apply with the job details from offshore(if I continue working with the same employer who filed i140). Any help much appreciated. Do you know anyone who have sucessfully done consular processing.

You need an approved H1B petition ( can happen only if you have bonafide job offer) to go for stamping.

@Kalpesh_Dalwadi - In fact I’ve a similar case wherein I’ve my approved I140 and left America in 2009 Oct. Recently in May 2022 I’ve applied for H1 transfer through a new employer and waiting for the result. Apparently there is no straight answer for this one in the immigration law, as I got different opinions(new cap vs transfer) from different firms/attorneys. I hope I’m being guided by new employer on the right patch. FYI :My PD is Sept (2009) ,which is current. So , once I’m in US with the new H1,I should able to continue my GC process with the new employer and immediately file my I485
Note: Looks like there is a relaxation in terms of changing the employers during this stage and also at the time of filing I485. Let me know your thoughts and share some insight. Thanks !

If your old employer is willing to offer you the same PERM job as in your I-140, they can file your I-485 once you are in the US working for the new H1B employer.

Otherwise, your new employer will need to restart the PERM process and can file I-140 & 485 concurrently once your PERM is approved and provided your PD is current at that point in time.

Yes, there will be a new PERM and I140 with the new employer, however, the PD with the old PERM will be leveraged,i.e. Sept 2009 . Is that a correct understanding?
Also, do you foresee any issue in the H1 approval , based on the gap of 12 years outside of America and applying for an extension based on the old I140?

Yes that can be ported to the new I-140.

No.