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Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 115325
Experience:  Principal Attorney at Guillermo J. Senmartin, P.A.
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Guillermo, a follow-up question regarding priority date. My

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Hi Guillermo, a follow-up question regarding priority date.
My priority date is in March 2017. Given my nationality of Mainland of China and EB2 category, currently I need to wait for about 3.5 years until I can file I-485. What if I don't file I-485 when it's ready for me to do so (let's say, in April 2021, after 3.5 years)? Will I lost my priority date? Or maybe I can file I-485 anytime after that (April 2021), as long as I'm in a valid H1b status?
Thanks for your advice!

You can file at any time after your PD becomes current. You do not lose your place in line. Let me know if you need anything else, but please do not forget that positive rating. Thank you!ce in line.

Guillermo Senmartin and 3 other Immigration Law Specialists are ready to help you
Customer: replied 8 months ago.
Thank you!

My pleasure!

Customer: replied 8 months ago.
Hi Guillermo, I learned from another immigration lawyer that I can actually make the 'time clock' for my H1b stop. All I need to do is to let my previous employer file a written withdrawal of the H1b petition to USCIS. Once the immigration USCIS receives this, it will lead to the automatic revocation of the petition.
That lawyer said by doing that, the 'time clock' for H1b stops. Let's say by now I only used 1 years of my 6-year H1b quota. If I leave US and come back 4 years later, I will still have 5 years to go with my existing H1b, instead of only 1 years left.
-- Is this true? I feel doubt and not sure how the 'time clock' for h1b works.Besides, when I research on internet, it seems my employer is required to file a written withdrawal after our employment relationship is terminated. So I don't need to explicitly ask them to do so.
“The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility… If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. “Thanks for your advice!

They are supposed to file something to let immigration know that you are no longer on H-1B, but that does NOT cause a revocation of the I-140. Even if is it revoked, as long as it is not revoked due to fraud or misrepresentation, you can generally keep the Priority Date for when a new I-140 is filed for you.

Customer: replied 8 months ago.
Hi Guillermo, I'm asking about the remaining time of H1b, not I-140. Let's say by now I only used 1 years of my 6-year H1b quota. If I leave US and come back 4 years later, will I still have 5 years to go with my existing H1b, instead of only 1 years left?

You get to recapture time that you spend outside of the U.S. if that is what you mean.

Customer: replied 8 months ago.
What do you mean by 'recapture time that you spend outside of the U.S'?
Customer: replied 8 months ago.
Let's say by now I only used 1 years of my 6-year H1b quota. If I leave US and come back 4 years later, will I still have 5 years to go with my existing H1b, or only 1 year left?

You would have 5 years left.

Customer: replied 8 months ago.
Oh ok, now I know what you mean. Just to confirm: Let's say I only used 1 years of my 6-year H1b quota and leave US. If I come back any time within the following 5 years, I can still use my existing H1b for the following 5 years. However, if want to come back after 5 years (so the 6-year period elapsed), I will have to obtain a new H1b by going through lottery. Is this correct?

Yes, but you have to do it before your 6 year cycle is over. Good luck!

Customer: replied 8 months ago.
Emm, on Internet some lawyers said the existing h1b will still be valid even after the 6 year cycle is over... Guillermo, can you point me to certain document clarifying on that? Thanks a lot!

No, I cannot. It is Sunday night and I am tired. Please stop doing your own research. There are two separate things to consider. One is that you have a 6 year cycle of H-1B. And the other is being cap-exempt. If you only use one year, you have 5 years left to use. You can come back any time within that 6 year cycle and be cap-exempt and can recapture those 5 years that you did not use. If you want a full 6 years and you have been outside of the U.S. for more than a year, you can get a full 6 years BUT you would be subject to the cap again and have to go through the lottery. I'm sorry that I am being short with you, but I am going to sign off soon. Sorry about that.

Customer: replied 8 months ago.
No prob, I understand. Thank you and have a good rest!

Thank you.