H1 Cap Reset One Year Gap Outside US

[ramesh789]

Hi,

What are the conditions apply for h1 cap (6 yrs) reset to Zero after one year stay outside US?

Here is my situation,

- I am in 7th year, Applied for GC in 2007 with Labor substitution, I-40 is in appeal for more than 2 yrs, so I was continuing on H1-B only.

- My current H1-B petition valid till May'12 end.

- Came to India on Vacation in Nov'2011, went for stamping in hyd, first AAO, after few days petition returned to USCIS for review, status changed to post-decision, more than 3 months with USCIS, no update yet.

- Client agreed to work from India till I get my visa.

- My employer running payroll in US.

Here my question is (consider that US payroll is still running), now it almost 6 months by now in India. If I stay for 6 more months in India, then I would be completing one year in India. Does my h1 cap reset to 0 (one year outside US) after 6 months? Does stay only considered for reset or payroll also will pay role in reset? Can I apply for new H1 from new employer now or after 6 months?

Please do let me know your comments best of your knowledge. Let me know if you need more information.

Thanks,

Ramesh

[JoeF]

If you want to get a new 6 years on H1, you have to be outside the US for one year before an employer can file a new H1 for you. That new H1 would have to be under the quota.

[visawary]

JoeF,

Need your advice here.

I spent a year outside US because I was on 221g, came back to the US with the understanding that I will get a new 6 year H1B when we apply next.

Since I have to go under the cap, there won't be any new visas until October, 2012. My company wanted me to move to another state. Can I file only an LCA now and then an H1B later near October to get my new 6 years?

In addition if my job description has changed due to a promotion does that mean that I have to file an amendment instead of an LCA NOW (since I am moving) and I lose the opportunity to claim a new 6 year term because I have to work between now and October.

Please help me here. My current H1B expires May 2012 and my lawyer is talking about only reclaiming the one year I was outside US. I however, want to get all the 6 years.

[JoeF]

Hmm, did you come back on H1?

If so, then the time abroad has not reset things.

You can recapture the time abroad, but you won't be able to get a new H1, since you came back with the old H1.

The rule is this: After a year abroad, you can come back with a new H1 under the quota, getting the full 6 years, or you can come back with the existing H1 and get only the remaining time.

[ramesh789]

JoeF,

Thanks for the reply. I would like to make sure this applies whether I am on US payroll or not. As I said in my mail thread, that currently I am on US payroll (my employer is stil running payroll coz I am still on client project but from India). If I understand correctly, only physical stay does matter. Please confirm.

[JoeF]

You only have a status while you are actually in the US.

If you are outside the US, even if you still work for a US company, you are not in any status.