L1Bextenstion Posted July 8, 2015 Report Share Posted July 8, 2015 I am currently in L1B and going to complete 5 years stay in Oct 2016.My H1B did not get selected for this year. I am planning to apply H1B again for 2017. I believe that stay could be extended till Oct 2017 considering 6 years for L1+H1. I know that i have to go back to India and stay for 365 days as cooling period. Can i use same H1 petition to come to US again after 365 days? what would be validity of H1 after cooling period? Link to comment
livliv Posted July 9, 2015 Report Share Posted July 9, 2015 To get fresh 6 years after staying abroad for 1 year, a new cap-subject petition will have to be filed. Link to comment
jairichi Posted July 9, 2015 Report Share Posted July 9, 2015 No. If a cap subject H1B petition is filed in April 2016 you get only 1 year. If you stay outside US for another year (after Oct 2017) then to get fresh 6 years a new cap subject H1B petition has to be filed. Link to comment
L1Bextenstion Posted July 10, 2015 Author Report Share Posted July 10, 2015 Thank your for your replies. Link to comment
L1Bextenstion Posted July 10, 2015 Author Report Share Posted July 10, 2015 One more clarification. So i need to go back India and start H1B cap after completion of 1 year or i can initiate during that 1 year period? Link to comment
livliv Posted July 10, 2015 Report Share Posted July 10, 2015 IMO start date has to be after 1 year. But some people thing application date has to be after 1 year. Your employer's attonrey will decide. Link to comment
JoeF Posted July 10, 2015 Report Share Posted July 10, 2015 You need to be outside the US for at least one year before a new H1 petition can be filed. Link to comment
jairichi Posted July 10, 2015 Report Share Posted July 10, 2015 One more clarification. So i need to go back India and start H1B cap after completion of 1 year or i can initiate during that 1 year period? After 1 year stay outside US an employer can file a cap subject H1B petition. Link to comment
JoeF Posted July 11, 2015 Report Share Posted July 11, 2015 IMO start date has to be after 1 year. But some people thing application date has to be after 1 year. Your employer's attonrey will decide.You are wrong.The application has to be approvable when filed, which means it can only be FILED after one year abroad. Murphy lawyers have confirmed that here over and over. Please educate yourself about these things. Thank you. Link to comment
L1Bextenstion Posted July 12, 2015 Author Report Share Posted July 12, 2015 IMO start date has to be after 1 year. But some people thing applicatiLion date has to be after 1 year. Your employer's attonrey will decide. livliv..what is IMO start date? Link to comment
jairichi Posted July 12, 2015 Report Share Posted July 12, 2015 livliv..what is IMO start date? In My Opinion (IMO) Link to comment
JoeF Posted July 12, 2015 Report Share Posted July 12, 2015 livliv..what is IMO start date? "IMO" is Internet short form for "In My Opinion".I n this case, livliv's opinion is wrong. See what a Murthy lawyer said: http://forum.murthy.com/index.php?/topic/42270-resetting-counter/ "Generally, to be eligible for a new five, six, or seven year period of L1 or H1B status after leaving the U.S., an individual must have been outside of the U.S. for a full year prior to filing the petition. Key: Must be eligible at the time of filing." (emphasis mine) Link to comment
livliv Posted July 13, 2015 Report Share Posted July 13, 2015 You are wrong. The application has to be approvable when filed, which means it can only be FILED after one year abroad. Murphy lawyers have confirmed that here over and over. Please educate yourself about these things. Thank you. That effectively changes the wait period to 2 years because of cap limitations. So if avenues exist, the beneficiary should explore them. The petition is filed by employers and they have attorneys to advise them. So if something is not possible the employer's attorneys will advise them so. What's the point of dissuading someone from the beginning? Link to comment
JoeF Posted July 13, 2015 Report Share Posted July 13, 2015 That effectively changes the wait period to 2 years because of cap limitations. So if avenues exist, the beneficiary should explore them. The petition is filed by employers and they have attorneys to advise them. So if something is not possible the employer's attorneys will advise them so. What's the point of dissuading someone from the beginning? The law doesn't change just because the quota gets hit in a few days. The person has to be outside the US for at least a year before a new H1 can be FILED. Period. Read the answer from a Murthy lawyer: http://forum.murthy.com/index.php?/topic/42270-resetting-counter/ "Generally, to be eligible for a new five, six, or seven year period of L1 or H1B status after leaving the U.S., an individual must have been outside of the U.S. for a full year prior to filing the petition. Key: Must be eligible at the time of filing." It doesn't get any clearer. Link to comment
livliv Posted July 13, 2015 Report Share Posted July 13, 2015 "IMO" is Internet short form for "In My Opinion".I n this case, livliv's opinion is wrong. See what a Murthy lawyer said: http://forum.murthy.com/index.php?/topic/42270-resetting-counter/ "Generally, to be eligible for a new five, six, or seven year period of L1 or H1B status after leaving the U.S., an individual must have been outside of the U.S. for a full year prior to filing the petition. Key: Must be eligible at the time of filing." (emphasis mine) Too bad, as that practically changes the 1 year requirement to a 2 year requirement. (Petitions has to be filed on Apr 1 even though start date is Oct 1). I would search if there is any solid precedent/rule/regulation/memo on this. (I am not saying there isn't, just leave no stone unturned). Also, if your employer's attorney is accessible, have them ask for clarification from USCIS through AILA or other forums. Logically, USCIS should have no problems in accepting such petitions since the beneficiary will have stayed abroad for 1 year on the effective date of H1B. Link to comment
JoeF Posted July 13, 2015 Report Share Posted July 13, 2015 Too bad, as that practically changes the 1 year requirement to a 2 year requirement. (Petitions has to be filed on Apr 1 even though start date is Oct 1). No it doesn't. A person can leave the country on March 31, so that a new H1 could be filed the following year on April 1. This is the law of the land. There is nothing to "search". An H1 petition always has to be approvable when filed. That's all there is to it. Link to comment
livliv Posted July 14, 2015 Report Share Posted July 14, 2015 No it doesn't. A person can leave the country on March 31, so that a new H1 could be filed the following year on April 1. This is the law of the land. There is nothing to "search". An H1 petition always has to be approvable when filed. That's all there is to it. Yes, that's a minimum of 18 months not 1 year. So the 1 year requirement is changed from 18 to 24 months, depending upon when you leave. If I were OP, I would leave no stone unturned is all I am saying, rather than relying solely on a forum post. Don't throw the word 'law' everywhere. There are laws and there are rules/regulations/interpretations. Most business with USCIS is conducted on the basis of regulations (CFR, which as I understand is the agency's implementation of laws). USCIS has shown in the past that they can be reasonable in changing their interpretations and providing clarifications when asked through proper channels such as AILA and Ombundsman. I believe this to be a genuine case for asking for clarification if it does not already exist. Which is why I ask OP to seek legal help from an experienced immigration attorney such as Murthy. Link to comment
jairichi Posted July 14, 2015 Report Share Posted July 14, 2015 Yes, that's a minimum of 18 months not 1 year. So the 1 year requirement is changed from 18 to 24 months, depending upon when you leave. If I were OP, I would leave no stone unturned is all I am saying, rather than relying solely on a forum post. Don't throw the word 'law' everywhere. There are laws and there are rules/regulations/interpretations. Most business with USCIS is conducted on the basis of regulations (CFR, which as I understand is the agency's implementation of laws). USCIS has shown in the past that they can be reasonable in changing their interpretations and providing clarifications when asked through proper channels such as AILA and Ombundsman. I believe this to be a genuine case for asking for clarification if it does not already exist. Which is why I ask OP to seek legal help from an experienced immigration attorney such as Murthy. JoeF is correct here. Any immigration attorney would say the same. There is nothing to be done other than wait those months outside US. As you said for a closure of this argument OP can talk to a good attorney. His/her answer will be no different. Link to comment
JoeF Posted July 14, 2015 Report Share Posted July 14, 2015 You still don't get it. THere is nothing "to be left unturned." There is no law saying that a person can get a new H1 after one year abroad. The minimum is 1 year. It could be 2, 3, 4, etc., due to a number of factors, e.g., not being selected in the quota. You need to stop posting wrong information. An H1 filed before having been abroad for one year WILL get denied. There is nothing unclear about it. Please get that into your head! Geez. Link to comment
livliv Posted July 14, 2015 Report Share Posted July 14, 2015 JoeF is correct here. Any immigration attorney would say the same. There is nothing to be done other than wait those months outside US. As you said for a closure of this argument OP can talk to a good attorney. His/her answer will be no different. I have already seen Murthy attorney's answer to the question 'Can H1 be filed before completing 1 year if effective date is after 1 year?' So I am not talking about asking that question. The questions I am talking about asking is, 'is this based on a USCIS memo/rule/regulation?', 'if not can we ask USCIS for clarification through AILA or Ombundsman?' Link to comment
JoeF Posted July 14, 2015 Report Share Posted July 14, 2015 I have already seen Murthy attorney's answer to the question 'Can H1 be filed before completing 1 year if effective date is after 1 year?' So I am not talking about asking that question. The questions I am talking about asking is, 'is this based on a USCIS memo/rule/regulation?', 'if not can we ask USCIS for clarification through AILA or Ombundsman?' This is based on the LAW! You have been told that before. Geez. Link to comment
jairichi Posted July 15, 2015 Report Share Posted July 15, 2015 I have already seen Murthy attorney's answer to the question 'Can H1 be filed before completing 1 year if effective date is after 1 year?' So I am not talking about asking that question. The questions I am talking about asking is, 'is this based on a USCIS memo/rule/regulation?', 'if not can we ask USCIS for clarification through AILA or Ombundsman?' Why take that pain when one can ask a good immigration attorney? Link to comment
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