Eligibility for new H1 after 1 yr of clock reset in H1

[goodluck]

Hi,

 

I worked in US for 5years in L1 and 1 year in H1, so I have to leave in November 2013.

My question is will I be eligible to file H1 in April 2014 and start working from December 2014?

Will cycle gets reset in H4, my wife is in H1 and if I change status into H4?

 

 

Thanks in advance...............

 

[jairichi]

No, an employer could file for a cap subject petition after 1 year of being out of US. In your case a petition could be filed by November 2014

[JoeF]

A new H1 can be FILED when you have been out of the US for one year.

If you leave in Nov. 2013, a new H1 could be filed in Nov. 2014. If the quota is full by then, a new H1 could be filed in April 2015, for a start date of Oct.  2015.

[goodluck]

A new H1 can be FILED when you have been out of the US for one year.

If you leave in Nov. 2013, a new H1 could be filed in Nov. 2014. If the quota is full by then, a new H1 could be filed in April 2015, for a start date of Oct.  2015.

If he visits US during this 1yr for short period, will that impact the cycle to reset?

[downbutstanding]

Hi,

 

Since your wife is in h1, you don't have to be out of country for 1 year. Apply for change of status (to H4). After one year on h4, you will be eligible to file for H1 under cap (if available) or in the next fiscal year.

 

Thanks.

[jairichi]

If he visits US during this 1yr for short period, will that impact the cycle to reset?

If he visits US on a H1B or L1 visa it will impact the reset of cycle. Any other visit should not be a problem.

[JoeF]

If he visits US on a H1B or L1 visa it will impact the reset of cycle. Any other visit should not be a problem.

Short visits on B1 or B2 are fine, but the time in the US on B1 or B2 is not counted for the one year.

[jairichi]

Hi,

 

Since your wife is in h1, you don't have to be out of country for 1 year. Apply for change of status (to H4). After one year on h4, you will be eligible to file for H1 under cap (if available) or in the next fiscal year.

 

Thanks.

@ JoeF: what happens in this situation?

[JoeF]

Hi,

 

Since your wife is in h1, you don't have to be out of country for 1 year. Apply for change of status (to H4). After one year on h4, you will be eligible to file for H1 under cap (if available) or in the next fiscal year.

 

Thanks.

Sorry, but that is WRONG!

For a new H1, the person ABSOLUTELY has to be out of the US for a year.

Please don't give wrong advice!

[JoeF]

@ JoeF: what happens in this situation?

The H1 would get denied.

[jairichi]

The H1 would get denied.

@ JoeF: I was thinking the same that OP will not be eligible to file a H1B petition.

[downbutstanding]

Sorry, but that is WRONG!

For a new H1, the person ABSOLUTELY has to be out of the US for a year.

Please don't give wrong advice!

 

Please go through following memo:

 

http://www.nafsa.org/_/File/_/UCSIC_Guidance_H-1B_Beyond_Six_Years.pdf

 

Thanks.

[jairichi]

Please go through following memo:

 

http://www.nafsa.org/_/File/_/UCSIC_Guidance_H-1B_Beyond_Six_Years.pdf

 

Thanks.

"Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification".

 

I believe it applies to a person entering on H4 and then converting to H1B. But, in OP case he was on L1B and H1B (total 6 years) and now if he moves to H4 by COS and stay for a year I doubt he will be eligible to apply for a cap subject H1B to get 6 years.

 

"In the alternative, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year. For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension. “New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5)".

 

The guidance report still stress the point that the alien has to be outside US for one year. If what you had said was true they would have added any other dependent status, which I do not see. This is my interpretation. I will wait for other comments.

[JoeF]

Please go through following memo:

 

http://www.nafsa.org/_/File/_/UCSIC_Guidance_H-1B_Beyond_Six_Years.pdf

 

Thanks.

Doesn't apply here. That's about decoupling of H1 and H4.

 

If you have used the full 6 years on H1, you can only get a new H1 if you have been outside the US for a year.

Period. End of story.

[kanupuru]

Hi Good Luck,

 

what did you do in your case.My husband is also in the same situation,he completed his 6 years on H1 B and now he moved to Canada for 1 year in Jan 2015.He visited me two times on H4 visa for short trips .Will this reset the clock ? is it okay to visit USA for short trips ?Please let me know.You might have passed the situation and looking for a correct answer.

 

Thanks.

[jairichi]

Hi Good Luck,

 

what did you do in your case.My husband is also in the same situation,he completed his 6 years on H1 B and now he moved to Canada for 1 year in Jan 2015.He visited me two times on H4 visa for short trips .Will this reset the clock ? is it okay to visit USA for short trips ?Please let me know.You might have passed the situation and looking for a correct answer.

 

Thanks.

A year outside US resets the clock. Short trips are fine. Talk to a good attorney with specific details and see whether a cap subject H1B petition can be filed this April.

[curiuoscase]

Hi,

 

I would like to get some suggestions and answers as I am in a similar situation.

I completed my 6 years of H1b with recaptured time in December 2014. I have been out of USA since then. My company would like me to visit on a B1 visa for 3 weeks in May.

 

1. Will 3 weeks affect my clock reset or will it be added to my 1 year time?

 

2. My Wife is on 1st year H1B in USA and I am planning to go back on H4 after my 1 year out of USA in Jan 2016.

Do I have to wait 365 days + 3 weeks to apply (if clock reset not affected) to apply for H4? Can I apply for H4 in November 2015 and travel to USA on H4 in Jan 2016? Will this affect my chances of applying H1b in April 2016?

 

Thanks in advance!!

[jairichi]

Hi,

 

I would like to get some suggestions and answers as I am in a similar situation.

I completed my 6 years of H1b with recaptured time in December 2014. I have been out of USA since then. My company would like me to visit on a B1 visa for 3 weeks in May.

 

1. Will 3 weeks affect my clock reset or will it be added to my 1 year time?

 

2. My Wife is on 1st year H1B in USA and I am planning to go back on H4 after my 1 year out of USA in Jan 2016.

Do I have to wait 365 days + 3 weeks to apply (if clock reset not affected) to apply for H4? Can I apply for H4 in November 2015 and travel to USA on H4 in Jan 2016? Will this affect my chances of applying H1b in April 2016?

 

Thanks in advance!!

1. It does not matter as you will still be eligible to file in April 2016.

2. Enter US on H4 after you served 1 year and 3 weeks outside US.

[JoeF]

Hi Good Luck,

 

what did you do in your case.My husband is also in the same situation,he completed his 6 years on H1 B and now he moved to Canada for 1 year in Jan 2015.He visited me two times on H4 visa for short trips .Will this reset the clock ? is it okay to visit USA for short trips ?Please let me know.You might have passed the situation and looking for a correct answer.

 

Thanks.

 

Note that short trips on H4 may not be ok. The law only says short trips for business or pleasure, i.e., as visitor, are ok.

"Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad."

[curiuoscase]

1. It does not matter as you will still be eligible to file in April 2016.

2. Enter US on H4 after you served 1 year and 3 weeks outside US.

 

Thanks for the reply. I don't have a H4 visa now and planning to go for it in October 2015. I am assuming from your reply that getting a H4 visa stamping before my 1 year + 3 weeks cool off time is not a problem.