H1B validity if outside U.S. with GC pending

[srapdy]

Hi, I have an interesting situation for which I could not get much information online so I decided to post here specifically. I am hoping someone on this forum can help me. I am in the U.S. on H1B for the last 10 years since 2008. So I am currently on a 3-year visa extension pending GC priority date (Feb 2012) with my employer. My current H1B extension expires in May 2019.  Now, my questions are -

(1) If I live outside the U.S., for say 1-1.5 years, can I still return back to U.S. with my current H1B extension before its expiry in May 2019 assuming my current employer offers to resume employment on return?

(2) Will I be subject to H1B lottery on return because I am already exceeded the initial 6 years period?

(3) Will the situation change in anyway if my current employer (H1B & GC sponsor) allows me to continue employment remote while I am outside the country?

Any help is much appreciated. Thanks!

 

 

[pontevecchio]

1. If you stay out for 1.5 years the employer will need to revoke the H1 petition and then file another H1 non cap petition for you before you return.

2. No,

3 You can work remotely from your country if the employer agrees .

[srapdy]

Hi pontevecchio, thanks so much for your response.  Will a new petition on return be necessary even if I continued the employment with my sponsor remotely in that 1.5 years? Thanks.

[JoeF]

7 hours ago, srapdy said:

Hi pontevecchio, thanks so much for your response.  Will a new petition on return be necessary even if I continued the employment with my sponsor remotely in that 1.5 years? Thanks.

Yes, it will be a new cap-exempt petition. The employer by law has to inform USCIS that you don;t work for them on the H1 in the US anymore, which will result in revocation of the H1.

Remote employment is not employment on H1. It is orthogonal (unrelated) to any H1 stuff.

So, if you want to come back to work for the employer on H1 in the US, the employer will have to file (and pay for) a new H1 petition, which will be cap-exempt.

 

[srapdy]

Very clear and helpful information. Thanks JoeF and pontevecchio. So this implies that even though the 6-year limit on H1B has exhausted, it will not jeopardize reclaiming H1B status after the 1.5-year gap because of an approved I-140 status with the employer. Am I correct in drawing this conclusion?

[JoeF]

Yes.

[srapdy]

Thank you so much.

[srapdy]

Sorry to be back again with a question. Can I reclaim the H-1B status on return to the U.S. (after 1.5 years) with a cap-exempt petition even if it is for a new employer/sponsor using the I-140 with my old employer (currently with)?

[satya2k1]

On 8/20/2017 at 10:58 AM, srapdy said:

Sorry to be back again with a question. Can I reclaim the H-1B status on return to the U.S. (after 1.5 years) with a cap-exempt petition even if it is for a new employer/sponsor using the I-140 with my old employer (currently with)?

Yes