More details to this question:
I left my Employer A on May 07 2012 and went back to Malaysia but still have 5 months left in my H1B after max out calculation. They also filed my GC and went up to I140 stage, but they revoked/withdraw because I left the company. (Revoked on August 30 2012). SRC1200251588 is the receipt number, but submitting a query for notice on USCIS, I received response stating my case was denied but USCIS website shows approval is revoked. Anyhow, I'm out of US and Now the same Ex employer (Employer A) have approached me with a new job offer, I understand that i'm cap exempt since I have not completed full six years but just 5 months is not enough, so would like to know whether the H1B can be extended based on the old PERM based on 365 days rule or by re-filing the revoked I140. Thanks.
1 ANSWER
Immigration and Nationality Law Attorney serving New York, NY
Partner at
Alan Lee & Arthur Lee, Attorneys at Law
3 Awards
As the I-140 has already been withdrawn by the employer and revoked by U.S.C.I.S., it would not appear that you would have a basis to extend the H-1B by refiling the revoked I-140 or using the 365 day rule. You would most likely have to start all over again, especially as the rules on labor certification/I-140 petition filing require that a petition be filed within 180 days of the labor certification approval for the labor certification to continue. In all likelihood, the labor certification cannot be used to support a new petition. In addition, there would not appear to be grounds to reopen the matter inasmuch as motions must be filed within 30 days of a decision and even a timely motion would not be able to name any error on the part of U.S.C.I.S. in revoking the petition. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.
Answered on Mar 08th, 2016 at 8:22 AM