H1-B Remainder Option : Unused Time & Out-of-Status Time

[nandu2]

Hi - My question is regarding the remaining H1-B time I have. I have a 6 yr H1-B from Employer A of which I worked in U.S for 4.5 years. I got layed off at the 4.5 yr mark and spent 150 days in the relocation process. I did not violate my I-94 date. But was out-of-status for the said 150 days. I am back in the U.S after 3 years on an H-4 visa.

My question is : I now have an H1-B job offer in the U.S. For how many months can I get it renewed via the H1B Remainder option ? Logically it appears 1.5 years. But will my out-of-status over-stay of 150 days reduce that time accordingly ? How do they compute remaining time ? Does INS take into account overstayed time on H1B and reduce accordingly ?

Please let me know.

Immigration Details so far:

First Visa issued: July 2004 - July 2007

2nd H1-B and I-94 Expiry: Issued on Jul 2007, set to expire on Mar 1 2010

Job Layoff - Nov 2008

Left USA - Apr 2009

H4 Stamping & Return to USA - Jan 2012

[rahul412]

I did not violate my I-94 date. But was out-of-status for the said 150 days. I am back in the U.S after 3 years on an H-4 visa.

So you were out-of-status previously on H1 and want to go back to h1 again?

[metroguy]

USCIS will calculate your in and out dates in your passport. So they will reclaim ur H1b timeperiod based on your passport entry and exit out of US. You have to apply H4 to H1 Change of status (COS)

[nandu2]

rahul412 - Thanks for responding. Yes, I would like to switch back to H1B as I now have a job offer.

metroguy - Thanks for responding.So what you're saying is :

1. When they compute in/out time, it will automatically include any out-of-status time spent in the U.S ? Are you sure..?

2. Would you know if will need petition approval followed by consular processing to begin work or can I begin work immediately once my paper work is filed (as one does with a H1-B transfer) ?

[rahul412]

rahul412 - Thanks for responding. Yes, I would like to switch back to H1B as I now have a job offer.

metroguy - Thanks for responding.So what you're saying is :

1. When they compute in/out time, it will automatically include any out-of-status time spent in the U.S ? Are you sure..?

2. Would you know if will need petition approval followed by consular processing to begin work or can I begin work immediately once my paper work is filed (as one does with a H1-B transfer) ?

So you were staying in US without status for 150days which is illegal, and now want to go back to H1. If this is true, then I am not sure whether your H1 will be approved as you have already violated the law. This is my opinion.

Wait for more replies or see an immigration attorney ASAP.

[nandu2]

Hi Guys - Just wanted to share an update from Murthy Law firm.

Posting the response here for the benefit of others:

1. Optimistically i should not have a problem getting the entire remaining time back on my h1b. What matters is the last date of employment - not so much that I was out of status for x number of months post that before leaving country.

2. It is possible however the USCIS *may* question out of status time and may potentially issue rfe (does not always happen, but anything is possible with the uscis). One can respond with one's justification and likely it will be approved for use. Worst case those x number of months of time spent out of status may be lost. But likely and hopefully not.

3. Since I am currently in status, no need for consular processing which is usually recommended for those not maintaining status currently. Although no reentry / consular processing needed, it is recommended to get h1b approval before beginning work.