H1b extension or transfer after withdrawn 140

I have been on H1b with employer A since 2005. They started my green card processing and my priority date is nov 2008 in EB3. I got my 140 approved in 2009.

In 2016 July i moved to employer B and got a H1b approved till July 2019. Due to circumstances beyond my control I had to move to India in late dec 2016. I have been in India since then.

I checked with employer A and found that they had withdrawn my I140. Is it possible to apply for extension with employer B in this case.

If not, is it possible to transfer to another employer in this scenario without falling under the yearly cap.

When was your i140 withdrawn?

I dont know the date for sure. I had contacted employer A last week and came to know that it had been withdrawn. They didnt mention when. I am assuming they did that immediately after i moved to employer B in 2016. Does the date matter or make any difference going forward?

As per a new rule enacted in Jan 2017 by USCIS, they will not revoke the i140 if Employer withdrew it after 180 days of approval.

So, the withdrawal date would matter in your case.

Since my I140 was approved in 2009 i had crossed the 180 day limit long time ago. Is the 180 day rule applicable only for those withdrawals that happened after Jan 2017 or does it also cover withdrawals that were initiated prior to Jan 2017?

The rule is applicable for withdrawal that happened after the rule came into effect.

I just found out that my I140 was withdrawn on 24 Aug 2016. What are my options going forward regarding extension with employer B or transfer to another employer.

Unfortunately, you cannot apply for H1B cap exempt extention if you do not have an approved i140 at this time and you have exhausted to your 6 year quota.

You can only apply for extention or Transfer to use the days or months that are remaining in total 6 years of H1B use.

If you have some days or months left, file for extention or Transfer and then ask your employer to start the GC process for you. Then, once you get i140 approved, you can extend your H1B cap exempt.

If this is not possible, then you need to apply fresh H1B in lottery to get a new 6 year term.

  1. From the above quote does that mean that i can apply for extension or transfer in the next month and half (current H1b expiring on June 30) or did you mean to say just file for transfer?

  2. If i can find an employer who can start the gc processing and get the I140 approved then i can use that for cap exempt H1B?

  3. I can still use the priority date from the old I140 right? If yes, then i could possibly file 140 and 485 concurrently?

What i mean to say is that you can file for H1b extension or a transfer if your have time left from your TIME spent in US physically. the total time that you can use on H1b is 6 years (roughly 365 * 6 days).

If you have already spent that time in US including all trips, then you cannot file a cap exempt H1B now.
If you have some time left, you can file the extension only for the remaining period.

You can try to file a new i140 with date porting but chances are low that USCIS will allow it now. Also, reaching the i140 stage itself will take about 9-10 months. If you do not have that much time left in your 6 year quota, you cannot stay in US anyway.

I have maxed out my 6 years long time ago. Does that mean that the only option for me right now is to try my luck in the H1 lottery next year?
I checked the status and case history of I140 in the my.uscis.gov site. It says “case was received” and the date shown is 2009. It doesnt say anything about withdrawal. What does this mean?
Since employer A said that the I140 was withdrawn but that is not what uscis says, so what is the true status of my I140?
I also checked the status of my last H1B with employer A and it says “revocation notice was sent” in Sep 16, which happens to be a month after i left. This is accurate.

It is possible that USCIS has not updated the i140 status online after it was withdrawn.

Try the other USCIS website:
https://myaccount.uscis.dhs.gov/

Register here and then add your i140 receipt to see case history. It might show more information.

Thats where i registered and got the info from.
when you register at https://myaccount.uscis.dhs.gov/
it leads to the site https://my.uscis.gov/account/applicant

ok…if this site is also showing the same information, then you can just try filing the new application with the existing i140.

Talk to new employer attorney and they should be able to help.