File H1B extension with i140 approved after max out


My h1 got maxed out on May 2018 (with all the time recaptured). I came back to India. My employer filed perm after max out and it got certified. Then they filed my i140 and it got approved too. Can I use this i140 approval to apply for cap exempt h1b petition now?

Please let me know.


Hi @Sadeesh1986

You can file H1B extension with i140 approved after H1B max out.

So the 365 day limit doesn’t matter when i140 is approved right? Once i140 is approved no matter if its not filed 365 days before h1b 6 years, we can still file h1 extension based on i140 after max out right?

365 day limit is only for PERM and not i140.

I have explained multiple scenarios for extension with i140 here.

Recently my I140 was approved. I’m approaching H1B max out date.
I understand that I can apply for H1B extension with the approved I140.


  1. Do I have to travel back to India then apply for cap exempt and then travel back to USA after visa stamping? OR Can I apply for H1B extension while continuing to stay in the US?

  2. Can I apply for H4 and H4-EAD for my spouse along with my H1B extension?