Compute total stay on H1

[AMITAMNP]

Hi, I got my petition approval in March 2004. Sequence of my stay since then is: 1.5 years in US; then 1.2 years in India; and then 5 years in the US. I'm currently in US.

My questions -

- a) I have been on the same petition since 2004 (4 extensions over original petition). Does my "6-year-cap" clock reset when I was in India for 1.2 years?

- b) if no, i have completed by 6 years stay as of April 2012. But I have approved petition, VISA and I-94. All three are valid until May-2013. Is this an "overstay" situation?

Please respond asap; as I've been struggling to find the convincing answer to this.

[shandan]

If you have a approved petition/visa.I-94 till May-2013 then you are perfectly fine and it is not overstay.

Now the question is if it is the same petition from 2004, then you must be having a PERM/I-140 approved based on which you are able to get your H1 extended beyond the 6 year cap, and which is a perfectly normal scenario there is nothing to worry about there.

But if that is not the case, then someone @ the USCIS messed up in the 6 year calculation for you and approved your visa till May 2013, which again is not your issue, because you have an approved visa stamped and an I-94 to go with it.

[rohang]

1) Reset rule apply only on new petition, as you are on same, it will not apply in your case.

2) I am afraid but it is you responsibility to calculate your time period. USCIS sometime makes that mistake. But we should not take advantage of this. in case your PERM is not been filed. Contact good attorney.

[AMITAMNP]

Thanks for your responses thus far. Nope, I do not have PERM filed - it is in the works. It's a clear extension case over the petition filed in 2004. It has been extended thus far 4 times and it finally now expires in May-2013.

So are you saying that the clock will not reset because it is the same petition?

[rohang]

Yes, no reset in this case. And as per your original post, your real 6 yrs total stay is crossed too.

I had personally experienced this where USCIS gave me longer period in VISA as well as in I94, but my lawyer suggested its better if i leave within valid time period or otherwise this will haunt me during future visa/gc processing.