H1-B: When should I travel (Unique Case)

[srijayas]

I need to book my ticket to USA.

Please help me decide when I need to fly back to USA so I dont have problem with my new H-1B.

H1-B got expired on 11/22/2010.

H4 receipt dated from 11/22/2010 but H4 valid from 12/27/2010 to 02/14/2013.

Left USA on (H4) 06/27/2011.

Came back to USA again (H4) on 02/10/2012. Left USA on 03/09/2012

I've already applied for a H1-B for the Fiscal Year 2013.

Considering the fact that I need to stay one year outside the country to re enter USA on H1-B, when can I re enter so that I dont jeopardize my H1-B?

According to my calculation my one year period finishes on 07/25/2012.

When is it advisable for me to book my ticket?

I've heard from my friends & previous colleague that keep a buffer period for atleast 1-2 weeks and then re enter USA.

I'm looking for an exact date as I need to be with the family on or before end of July.

Can someone pls provide me an expert guidance

Note:

I didnt include the below dates for my one year calculation

06/27/11 which I exited USA

02/10/12 which I entered USA,

03/09/12 which I exited USA .

[livliv]

The one year outside has to be continuous, so technically to qualify for fresh 6 years under new cap-subject petition it cannot be before 3/9/2013.

Since, you mention your employer has filed an H1 for you. You need to check how it was filed, under new cap or under previous cap. If filed under previous cap, they can request immediate start date and you can travel immediately after it gets approved and work for this employer. (You will of course need valid H1 Visa in your passport to travel). But in this case you will only get 6 years minus previous time spent in the US in H1 status.

If the employer has filed under new cap, that may be the wrong thing to do, since you have not spent 1 year outside the US (continuously). Even if USCIS erroneously approves it, if you use it that can create problems for you later.

Consult an experienced attorney on your own to better understand your options.

[wiweq]

One year in stretch from your last departure date form USA. No matters what was your last visa status in USA.

One year stay is only necessary if you are going to get new 6 yrs quota and not interested in using your remaining time on last 6 yrs quota.

[srijayas]

The one year outside has to be continuous, so technically to qualify for fresh 6 years under new cap-subject petition it cannot be before 3/9/2013.

Since, you mention your employer has filed an H1 for you. You need to check how it was filed, under new cap or under previous cap. If filed under previous cap, they can request immediate start date and you can travel immediately after it gets approved and work for this employer. (You will of course need valid H1 Visa in your passport to travel). But in this case you will only get 6 years minus previous time spent in the US in H1 status.

If the employer has filed under new cap, that may be the wrong thing to do, since you have not spent 1 year outside the US (continuously). Even if USCIS erroneously approves it, if you use it that can create problems for you later.

Consult an experienced attorney on your own to better understand your options.

I consulted an attorney on this issue.

My employer has filed a new H1-B for fiscal yr 2013.

Attorney office told me that one Yr has to be cummulative & not continous. That was the reason I gave a break up of dates when I entered & exited USA from 2011-2012.

[srijayas]

One year in stretch from your last departure date form USA. No matters what was your last visa status in USA.

One year stay is only necessary if you are going to get new 6 yrs quota and not interested in using your remaining time on last 6 yrs quota.

As per the attorney office they said the time that I briefly stayed in USA from 02/10/12-03/09/12 will be deducted to my one year stay outside USA & that is the reason instead of my one year period ending on 06/26/12 it got prolonged to 07/25/12.

[livliv]

Well, your attorney seems to be misguided or they may be talking about deducting the stay abroad from your 6 year limit. You can consult an experienced attorney of your own (different from employer's attorney) who can protect your own interests if you want.

[wiweq]

"As per the attorney office they said the time that I briefly stayed in USA from 02/10/12-03/09/12 will be deducted to my one year stay outside USA"

=> Ask to you attorney the definition of brief stay? While asking this also ask if this definition is approved by USICS?

[JoeF]

Well, your attorney seems to be misguided or they may be talking about deducting the stay abroad from your 6 year limit. You can consult an experienced attorney of your own (different from employer's attorney) who can protect your own interests if you want.

Weel, it seems both you and the lawyer are not completely right.

The stay abroad does not necessarily have to be continuous.

But a person can not just come on H4 for a while.

The law says (8 CFR 214.2(h)(13)):

"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."

That means brief visits on B1 or B2. Certainly not on H4.

[srijayas]

Weel, it seems both you and the lawyer are not completely right.

The stay abroad does not necessarily have to be continuous.

But a person can not just come on H4 for a while.

The law says (8 CFR 214.2(h)(13)):

"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."

That means brief visits on B1 or B2. Certainly not on H4.

JoeF, thanks for your post.

i'm kind of worried. My employer as already applied for a new H1-B for fiscal year 2013.

Scenario:

H1-B ended on 11/22/2010 (This stays constant)

Hypothetical situation:

I left USA on H4 on 06/27/2011 & had I not entered USA in between for a continous period of one year (on or before 06/28/2012) would I've been eligible for a new H1-B petition for the fiscal year 2013?

My Situation:

I left USA on H4 on 06/27/2011 stayed outside until 02/09/2012. (My stay was 227 days outside USA).

My son was sick so I flew from India to be with him & went back on 03/10/2012.(My stay inside USA was 29 days)

At this juncture does my clock reset back to day 1 from 03/10/2012 or does it start from day 228.

Pls let me know