Do I fall under 65,000/20,000 cap if I spend 12 months outside US after 6 yrs on H1?

[kingleoin]

After completing 6 yrs, on H1 in the US, I returned to India in early June 2012. I also hold a US Master's Degree. If an employer petitions on my behalf on April 1st, 2013 - will I fall under any cap?

If not (don't fall under any cap): does the petition still need to be filed on April 1st or can it be done at any time of the year? And if Visa is approved, can I return to the US any time after completion of 12 months of stay outside US or do I still have to wait till October 2013?

If I do fall under the cap:

1. Can the petition be filed on April 1st 2013, even though 12 months of physical stay outside the US wont' complete until 1st week of June 2013?

2. Is education evaluation still needed while filing for fresh H1?

Thanks...

[Attorney_11]

Generally, to restart a 6 year period of H1B stay, an individual must be outside the United States for one full year before being the H-1B petition is filed.

[nlr]

Attorney_11,

Could you please address the question around the cap as well, since I am in a similar situation i.e., still have a month to complete my 365 day H1B reset but H1B cap opens in April 1st, 2013 and probably get filled by the time I complete my reset period, Am I subject to the H1B cap?? Note: I hold a US Masters degree...

Or does the cap not apply to people applying the second time around?

Thanks

[nlr]

Additionally on the USCIS site, it states the below, so does that mean if you apply for the second time (post reset period), you are NOT counted against the H1-B cap?:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process FY 2013 petitions filed to:

[kingleoin]

Thanks for your prompt response. So based on what you're saying - the earliest opportunity for an employer to petition H1B for me will be April 1st, 2014?

[kalyan_ac]

Since you have already completed the six years, you are cap subject or fall under the cap.

[Attorney_11]

Applicability to the cap depends on a case by case basis. It is advisable to seek the counsel of a competent immigration attorney for personalized legal strategy.

[kingleoin]

Thank You Attorney_11 & immigrationseeker for sharing your insights on the subject. I've been communicating my questions/concerns to my employer's attorneys as well, but HR being the go between and the time-difference between EST & IST has been delaying the availability of information. Besides, I also want to pay personal due diligence & verify from multiple and importantly, reliable sources [read: Murthy Law firm:-)]

I understand that I may be subject to a cap/quota. I also understand that "Generally (there may be exceptions?), to restart a 6 year period of H1B stay, an individual must be outside the United States for one full year before being the H-1B petition is filed."

Does the above statement rule out an H1B petition for me until April 2014?

OR

Can we petition in April 2013 and during stamping at the consulate ensure our sponsor letters and travel arrangements are for a date after 12 months (June 2013, in my case) of stay outside the US is complete?

[kingleoin]

One more point I should've included in my previous comment: During my 6 year stay on H1, I spent 35 days outside the US - this time wasn't recovered before visa expiration. Can this duration of 35 days be used towards 12 month mandatory stay outside US requirement?

[JoeF]

You have to be outside the US for one year before a new H1 can be FILED.

[t75]

One more point I should've included in my previous comment: During my 6 year stay on H1, I spent 35 days outside the US - this time wasn't recovered before visa expiration. Can this duration of 35 days be used towards 12 month mandatory stay outside US requirement?

NO

[vivek1311]

Murthy.com - Thank you for providing this wonderful service.

I have been following murthy.com for about 4 years now.

I have a question regarding my wife's 7 year extension and need advise.

My wife has completed 6 years on H1 , and is currently on H4. ( There was no LC filed or GC process initiated.)

In order to be eligible for H1 again - she has decided to stay outside the US for 1 year, and has completed 6 months of stay outside US.

On her return, can she apply for a COS to get her previous H1 transferred on getting a job ?

Or will it have to go through as fresh H1 in cap?

I understand there are many approvals after 6 years without them applying in Cap category, on a case by case basis.

[ PS: I am in my 7th year of stay in the US on H1/ EB3 with i-140 approved. My wife is currently on H4, and my son is a US citizen. ]

Regards,

Vivek

[JoeF]

To get a new 6 years, the H1 falls under the quota.