Confusion on H1-B Clock Reset

[vjumesh]

Hello Experts,

I am in confusion on H1-B Visa Clock Reset when we stay out of US for more than 12 months period.

Following are my US stay details:

1] From 12-Feb-2006 To 30-Nov-2007

Period: 1 Yr 9 Months & 18 Days

2] From 01-Jan-2008 To 01-Feb-2009

Period: 1 Yr 1 Month

3] From 02-Feb-2009 To 01-Jun-2010 at India

Period: 1 Yr 4 Months (16 Months)

4] From 01-Jun-2010 To 30-Sep-2011 (1st Extension ended)

Period: 1 Yr 4 Months (16 Months)

5] From 01-Oct-2011 To 07-Jul-2013 (2nd Extension ends)

Period: 1 Yr 9 Months 7 Days

Total Stay in US would be: 6 Yrs

Note that my 1^st visa extension was approved while I was in US and then left to India. I stayed in India for 16 months and returned to US on the same 1^st Visa extension approval stamped on my passport. Recently applied for 2^nd extension and got it approved with new I-94 until 07-Jul-2013. It seems that USCIS calculated exact 6 years of US stay and provided the 2^nd extension. However, I heard from many sources that I would be eligible to get 3^rd extension because my H1-B clock got reset due to my stay outside US for more than 12 months. So I would get another 6 years from 01-Jun-2010. Would like to know the experts’ comments so that accordingly I need to plan further.

Also, would like to know what are the chances of H1-B transfer at this stage & look for an employer who would be ready to file my Green Card when ONLY 1.5 years are remaining to expire my I-94/visa. Because I learned that GC can be filed only 6 months before visa expiry so in my case, it should be filed by Jan-2012.

Appreciate your response.

[JoeF]

If you entered the US on your existing H1 after more than 1 year abroad, the time abroad is gone for purposes of resetting the H1.

You have to be abroad for one year before applying for a new H1 under the cap.

If you reuse your existing H1, the time abroad doesn't count anymore.

[vmaha]

I think this is to do with whether your case is counted in cap limit or not. Since you came back on original same H1, no new cap limit count is used above problem is coming. I belive in july 2013 if you file H1 and ask to be counted in cap limit (assuming cap limit is available that time) it may work. Of ocurse I am not 100% sure so best to ask lawyer.

[vjumesh]

Hello Experts,

Thanks a lot for all your valuable guidance provided through this H1-B Clock Reset information.

From JoeF's response, I won't be eligible to get further extension unless my GC - Labor is filed before 07-Jul-2012 which looks very difficult and too risky considering chances of different employee to commit me for filing my GC as soon as I join their organization. Also I heard that there are H1-B transfer rejections. I also heard that we can file GC through future employer. Any suggestions to find out such organizations or links, etc.

I am still confused by the response received by "vmaha". How can I get to know if my case is counted in cap limit or not.

Any suggestions please. I have very less time left to decide if

1> I should change the current job and take a risk

OR

2> Should I continue the current job and return back to India by 07-Jul-2013.

Thanks a in advance.

[JoeF]

Hello Experts,

Thanks a lot for all your valuable guidance provided through this H1-B Clock Reset information.

From JoeF's response, I won't be eligible to get further extension unless my GC - Labor is filed before 07-Jul-2012

Well, you can recapture time you spent abroad.

So, if you had 6 years of H1, but spent one year of that abroad, you can get another one-year extension. You'd have to provide proof that you were outside the US, e.g., boarding passes, bills from abroad, etc.

You may want to discuss your specific case with an immigration lawyer.

[vjumesh]

Thanks for your expert comments.

I have another queries on the same topic.

1> Can my current employer file either L1-A or L1-B visa before my 6 years gets completed on H1-B?

2> If my L1-A or L1-B gets approved before H1-B's 6 years gets completed, can I visit India and get L1-A or L1-B stamped and return to US on a new visa?

3> How many years of new L1-A & L1-B visa would I be getting? Note that I have already spent more than 12 months in India on my existing H1-B visa but clock didn't got reset because I came to US on the same visa and not on the new visa.

4> What are the chances of getting L1-A & L1-B visa in my case?

Appreciate your expert comments which will surely help me to take decisions.

[JoeF]

The time on H1 and L1 is combined, and can not exceed the time allowed for the latest status.

If you have more than 5 years on H1, you won't get an L1B approved unless you've been outside the US for one year.

And furthermore, for an L1 you would have to be working for the employer abroad for at least one year in the last three years. That means a change to L1 would not be possible if you worked the last 2+ years in the US, e.g., on H1.

[vjumesh]

Thanks JoeF for your information.

I would like to know if my employer can file fresh H1-B in Oct-2012 cap? Because I have spent more than a year outside US during my current H1-B 6 years tenure (which is getting over by 7-Jul-2013). If Yes, do I need to stay 1 year outside US or I can continue on new H1-B for next 6 years.

Thanks!

[JoeF]

Thanks JoeF for your information.

I would like to know if my employer can file fresh H1-B in Oct-2012 cap? Because I have spent more than a year outside US during my current H1-B 6 years tenure (which is getting over by 7-Jul-2013). If Yes, do I need to stay 1 year outside US or I can continue on new H1-B for next 6 years.

The time you spend abroad earlier is irrelevant for this.

Between your last time on H1 in the US and the new application there has to be a 1-year gap.

You reset the gap each time you use the current H1 to enter the US.

In other words, if you are currently in the US on H1, you would have to leave the country, stay one year abroad, and then and only then can the employer file a new H1 under the cap for you.

If you use the current H1 to enter in the meantime, the 1 year would have to start over again.