H1B extension time calculation

[sameer66]

Hello,

My current H1-B petition is expiring on May 15, 2012 and there seems to be some confusion with respect to how much time I have remaining on H1B for which an extension can be applied.

Here is a short(!) summary of my H1B transitions:

1. Apr 2004 - Aug 2005 - In US on fresh H1, valid until end of Jan 2007

2. Sep 2005 - Dec 2006 - Back in India

3. Early Jan 2007 (before H1 expiration) - Back in US, then apply for H1 extension, get extension till Jan 2010

4. July 2007 - Quit Company A in the US, move to Company B, apply H1 transfer, get H1 transfer approved until June 2010

5. Apr 2008 - Quit Company B, move back to Company A (!) - H1 transferred back to Company A

6. Jan 2009 - H1 transfer finally approved (applied in Apr 2008), get H1 petition valid from Jan 2009 - Apr 2009

7. Apr 2009 - Company A applies for extension but we get a RFE on the case, so we decide for me to return to India and then we cancel the H1 extension application

8. June 2009 - I am back in India

9. Sep 2009 - Company A files for a what I understand is a FRESH H1 while I am in India - I don't have a valid I-94 at that point, so I don't see how this application can qualify as an extension, can it?

10. Oct 2009 - H1 approved until Jan 2012 (based on the point # 9, my understanding is that this was a "fresh" H1 and not an extension, but I have no way of determining if it was a cap or a non-cap case)

11. Dec 2009 - Travel back to the US

12. Nov 2011 - We apply for H1 extension

13. Dec 2011 - Get H1 extension, valid only until May 15, 2012

14. May 2012 - Initially, when I was doing my paperwork, my immigration department had calculated my remaining tenure to be until Nov 15, 2013 - not taking into account the time I spent in the US from Apr 2004 - Sep 2005 (#1 above), since I spent more than a year out of the US thereafter (#2 above)

However, upon review of the case, the lawyers are now of the opinion that since the extension filed after I returned to the US in 2007 (#3 above) was a non-cap case, we will have to take into account the time spent in Apr 2004 - Sep 2005 - So that means that the only time remaining for which we can file a H1 extension is the time I spent out of the US (on vacation + work related trip to India) from Nov 2011 to May 2012, which totals to about ~8 weeks.

And hence, according to the lawyers - the H1 extension would be valid only until ~June 30, 2012.

So now my questions are:

1. Agreed that the 2007 extension (#3) was a non-cap case, but what about the fact the H1 applied while I was in India (# 9 above) was indeed a fresh H1 (or so I understand) - Shouldn't this make me eligible for a fresh 6 years starting Oct 2009?

2. How can I determine whether any H1 petition is a extension, fresh cap, or a non-cap case?

3. And what are your thoughts about the above situation in terms of how much time should I have remaining on my H1?

Note: On the GC front - It hasn't been more than 365 days since PERM was applied, so the 1 year extension due to the pending PERM / approved I140 doesn't apply here.

And if you actually managed to read this far, thank you for taking the time and effort to do so :)

- Sameer