Limitation of stay calculation for L1 and H1

[jerrus2003]

My Company filed my first L1-Blanket petition for me in 2008. It was approved. Visa validity from 04-Apr-08 till 31-Mar-11. Travel details on this visa as follows:

Visa  US Entry    US Exit

L1-B  04/20/08  05/14/09  

L1-B  05/31/09  06/11/10  

On 06/11/2010, I returned to India. Old visa expired Mar,2011. Filed a new L1B and it was approved. Validity from 23-Mar-11 to 13-Mar-14.I travelled back to US on 05/15/2011.Travel details new visa as follows:

Visa  US Entry    US Exit

L1-B  05/15/2011  09/03/2011

L1-B  09/19/2011  02/15/2013

L1-B  03/02/2013  current  

My current I94 and Visa expires on 13-March-2014. Given this scenario,I have the following question:

1. If I return to India and file H1B in April-2014, will I be eligible for a fresh 6 years? Will my clock be reset in this case? Or will I have to stay for 365 days before even filing a H1B?

[pontevecchio]

How many actual months have you been in L1 status?.

[jerrus2003]

It would be 4 Years and 6 months till now. 

[jairichi]

It would be 4 Years and 6 months till now. 

You will get 1 year and 6 months on H1B if you apply by April 2014. If you apply by April 2015 you will get full 6 years.

[pontevecchio]

You need to stay out for one year and then a H1 sponsor can file a cap subject H1 petition for you. If you leave on March,13 2014 you are looking at April, 2015 for a sponsor to file.

[Sulekha1]

Hi jerrus2003,

 

Between first and second L1-B visas, did you ever file any extension?

 

How did you get L1-B 2nd time? is it that you just went with new I-129S along with same blanket petition? Please clarify as I'm in similar scenario now...

[jerrus2003]

Hi Sulekha1,

 

No I did not file any extension between my first and second L1-B.

 

I returned back to India in 06/11/10 on my old visa. The old visa was valid untill 31-Mar-2011. In March-2011, I filed my company filed a new L1Blanket and I had to attend a visa interview. That is when i got my current visa approved untill 13-Mar-2014. 

 

I now have to apply for my extension of stay, which I think I will be eligible for only a couple of months - since I did not stay a full 1 year (365 day) period in India (b/w 06/11/2010 and 05/15/2011).

 

Hope this info helps!!

[contactvsy]

I need some help too. 

Worked in USA on L1B visa from Jan 2009 to May 2013.  (aprox 4 years in USA excluding vacations).

Changed to H4 immediately from May 2013.I am Currently in USA as of November 2013 on H4.

If I apply H1 cap subject in April 2014 to be valid from Oct 2014. what kind of validity i would get on my first H1. If I exit USA in Dec 2013 and choose to enter after 365 days. Will I be able to apply extensions to avail 6 years of H1 validity down the line ?

[jairichi]

Nope. You will get 6 years - 4 years spent on H1B. To get 6 years you need to be outside US 365 days before a H1B petition could be filed for you. If you exit Dec 2013 then a H1B petition can be filed in Jan 2015 (actually April 2015) to get 6 years validity with a start date of Oct 2015.

[jerrus2003]

Thanks @Jairichi.

 

In continuation to my first question in this thread:

 

My company has filed my I-94 extension on 20-Nov-2013 and they have requested extension until 10-May-2014. Till now, the case is under "Initial Review". By 10-May-2014, I will be max'ing out my 5 years in L1B (combining all my stays in the past - listed in my first question of this thread). 

 

Now, if my case is pending or gets in to an RFE and I don't get a Approved/Denied final decision by 10-May, can I continue to stay in the US until I get a final decision or is it better to leave the US before 10-May (before I max out the 5 years) to prevent overstaying?

 

I know about the 240 day rule and I am authorized to stay upto 240 days since the filing of my I94 extension, but within the 240 days itself my 5 yr quota gets over.

 

So can I continue to stay until I get a decision or is it better to go back before 10-May-2014 to prevent any future complications when I apply for another US visa? 

 

Please clarify.

[jairichi]

Thanks @Jairichi.

 

In continuation to my first question in this thread:

 

My company has filed my I-94 extension on 20-Nov-2013 and they have requested extension until 10-May-2014. Till now, the case is under "Initial Review". By 10-May-2014, I will be max'ing out my 5 years in L1B (combining all my stays in the past - listed in my first question of this thread). 

 

Now, if my case is pending or gets in to an RFE and I don't get a Approved/Denied final decision by 10-May, can I continue to stay in the US until I get a final decision or is it better to leave the US before 10-May (before I max out the 5 years) to prevent overstaying?

 

I know about the 240 day rule and I am authorized to stay upto 240 days since the filing of my I94 extension, but within the 240 days itself my 5 yr quota gets over.

 

So can I continue to stay until I get a decision or is it better to go back before 10-May-2014 to prevent any future complications when I apply for another US visa? 

 

Please clarify.

One is allowed to stay for 240 days till a decision is made on an extension petition. But, in your case since you max out your 5 years stay on L1B by 10th May 2014 you would need to exit whether a decision is made or not.

[jerrus2003]

Thanks Jairichi. An update on my case. I received an RFE in my case on 13-Feb-2014.

 

Not really sure of what USCIS has asked in the RFE, considering that my company had filed for the extension requesting time only until 10-May-2014.

 

But I have been receiving contradicting responses from my employer and from searching online in few other blogs and forums. One such search result as follows:

 

http://www.*******************

 

Strategies When Time Limit is Reached

For some aliens the day of reckoning arrives when the five, six or seven year limit is reached. For these aliens, what advice can be given that would enable the person to continue employment and/or continue residing in the United States? The following strategies should be considered:

1. Filing a timely extension to recapture time spent out of the United States.
   
   Even if the application is not approved, it may result in the alien being able to work in the United States for up to 240 days following the end of the five, six, or seven years. Assuming the extension application is filed on or before the last day of the approval period, the alien is authorized to be employed for up to 240 days while the extension is pending. 8'C.F.R.''274a.12(b)(20). As a practical matter, assuming USCIS issues a Request for Evidence requesting further details of overseas travel or the like, the possibility of such an application pending for 240 days is very real. Although ethical issues could be raised, it would appear that such a strategy is in conformity with the clear language of the regulations. It would also appear that the application should be 'non-frivolous' such that no 'unlawful presence' time would be accumulated for purposes of '222(g) or '212(a)(9)(B), even if the extension application is ultimately denied. See INS Memoranda dated March 3, 2000 (HQ 70/12-P and HQADN 70/21.1.24-P).

This is the same thing my employer is also stating. That I am eligible to stay here and work until 240 days or till I get a decision from uscis.

 

Confused as to what is correct. Also, now, assuming I am allowed the standard 90 day period to respond to my RFE (it will be 13-May-2014), I would have already reached the requested extension time by the time I respond to my RFE.

 

If i do stay beyond the 10-May-2014 period, how will the stay be counted as? Would it be counted under the Attorney General authorized stay period of 240 days on a timely filed pending petition or would it be out of status? Will this impact any other Visas or benefits I might seek from USCIS in the future?

[jairichi]

Thanks Jairichi. An update on my case. I received an RFE in my case on 13-Feb-2014.

 

Not really sure of what USCIS has asked in the RFE, considering that my company had filed for the extension requesting time only until 10-May-2014.

 

But I have been receiving contradicting responses from my employer and from searching online in few other blogs and forums. One such search result as follows:

 

http://www.*******************

 

Strategies When Time Limit is Reached

For some aliens the day of reckoning arrives when the five, six or seven year limit is reached. For these aliens, what advice can be given that would enable the person to continue employment and/or continue residing in the United States? The following strategies should be considered:

1. Filing a timely extension to recapture time spent out of the United States.

   Even if the application is not approved, it may result in the alien being able to work in the United States for up to 240 days following the end of the five, six, or seven years. Assuming the extension application is filed on or before the last day of the approval period, the alien is authorized to be employed for up to 240 days while the extension is pending. 8'C.F.R.''274a.12(b)(20). As a practical matter, assuming USCIS issues a Request for Evidence requesting further details of overseas travel or the like, the possibility of such an application pending for 240 days is very real. Although ethical issues could be raised, it would appear that such a strategy is in conformity with the clear language of the regulations. It would also appear that the application should be 'non-frivolous' such that no 'unlawful presence' time would be accumulated for purposes of '222(g) or '212(a)(9)(B), even if the extension application is ultimately denied. See INS Memoranda dated March 3, 2000 (HQ 70/12-P and HQADN 70/21.1.24-P).

This is the same thing my employer is also stating. That I am eligible to stay here and work until 240 days or till I get a decision from uscis.

 

Confused as to what is correct. Also, now, assuming I am allowed the standard 90 day period to respond to my RFE (it will be 13-May-2014), I would have already reached the requested extension time by the time I respond to my RFE.

 

If i do stay beyond the 10-May-2014 period, how will the stay be counted as? Would it be counted under the Attorney General authorized stay period of 240 days on a timely filed pending petition or would it be out of status? Will this impact any other Visas or benefits I might seek from USCIS in the future?

This applies if you have any time to recapture beyond your current authorized stay in US on L1B but within the 5 year authorized limit. 

[jerrus2003]

Thanks Jairichi. One last question. As expected, USCIS has asked for evidence for specialized knowledge and given time till 11-May-2014 to respond to the RFE. As mentioned above, my extension request has the dates from 13-March-2014 to 10-May-2014.

 

My company attorney has said, it would be better not to respond to the RFE and leave the US by 1st week of May and they will withdraw the case before 11-May-2014.

 

Would this be a better approach or do i have any other options?

 

Please suggest!!

[jairichi]

Thanks Jairichi. One last question. As expected, USCIS has asked for evidence for specialized knowledge and given time till 11-May-2014 to respond to the RFE. As mentioned above, my extension request has the dates from 13-March-2014 to 10-May-2014.

 

My company attorney has said, it would be better not to respond to the RFE and leave the US by 1st week of May and they will withdraw the case before 11-May-2014.

 

Would this be a better approach or do i have any other options?

 

Please suggest!!

If your attorney says so then go ahead.