H1b 6 years validity after 1 year out side of US

[priyakiran777]

Hi,

I was in US from Jan 2007 to Jan 2009 and returned to my home country. Suppose if an employer apply a new H1 under cap exempt, would i get 6 years validity or i get only remaining 4 years.

What i heard is if i apply under cap exempt, i get only remaining period i.e, 4 years in my case. And if i apply in 2013 quota( or Any year quota ) i would be full 6 years.

Is that true? Experts and Attorneys please confir me.

Thanks.

[chtummala]

remaining 4 years for cap exempt

[JoeF]

You would only get the full 6 years if an employer files a new H1 under the quota.

[priyakiran777]

JoeF thanks for responding to my case. But still i want to know more details on this case.

• I was in US from Jan 2007 to Jan 2009 on L1 visa, I was never on H1b in US.
  
• Returned to home country and filed H1b in Quota in June 2010 ( Notice 1 year out of US)
  
• Got H1b approval ( I-797 ) and went for stamping to US consulate, 221g issued and case pending at consulate for more than a year and then case closed.
  
• Filed new H1 under cap exempt with the previous petition which didn't get visa.
  

My question is, I filed fresh H1 in quota after i year out of US, which didn't get visa. With the previous petition i filed new H1 under cap exempt. So i should get 6 years right, because i didn't go US with approved petition.

[chtummala]

JoeF thanks for responding to my case. But still i want to know more details on this case.

• I was in US from Jan 2007 to Jan 2009 on L1 visa, I was never on H1b in US.
  
• Returned to home country and filed H1b in Quota in June 2010 ( Notice 1 year out of US)
  
• Got H1b approval ( I-797 ) and went for stamping to US consulate, 221g issued and case pending at consulate for more than a year and then case closed.
  
• Filed new H1 under cap exempt with the previous petition which didn't get visa.
  

My question is, I filed fresh H1 in quota after i year out of US, which didn't get visa. With the previous petition i filed new H1 under cap exempt. So i should get 6 years right, because i didn't go US with approved petition.

6 yrs

[pontevecchio]

It would depend on whether the original H1 petition was revoked by USCIS or not for cause.

[priyakiran777]

It would depend on whether the original H1 petition was revoked by USCIS or not for cause.

As my visa processing is pending at consulate for more than a year, USCIS revoked my previous petition.

So would i get 6 years?

[pontevecchio]

It now becomes a very narrow legal opinion. Does revocation of the intial H1 petition by USCIS for cause after having been referred to by the Consulate render you unable to consider yourself capped once? Please talk to a Lawyer. You may have to start afresh with a H1 petition filing by any employer in April for a start date of October,1 onwards.

[priyakiran777]

Actually my employer sent H1b cancellation to USCIS after waiting for 1 year for visa stamping. Then USCIS revoke my petition. Is this a proper cause to get 6 years.

[pontevecchio]

As I said you do need a Lawyer to help. It may be possible for you to claim you were cap counted. Give the firm of Murthy a call to discuss your situation.

[JoeF]

If you have been outside the US for a year, an employer can file a new H1 under the quota, and that would allow you to get the full 6 years.

The important things are that you have been outside the US for a year when the application is filed, and that it is an application under the quota.

[priyakiran777]

As I said you do need a Lawyer to help. It may be possible for you to claim you were cap counted. Give the firm of Murthy a call to discuss your situation.

Thanks for your reply. Definitely i will talk to a lawyer.

[priyakiran777]

If you have been outside the US for a year, an employer can file a new H1 under the quota, and that would allow you to get the full 6 years.

The important things are that you have been outside the US for a year when the application is filed, and that it is an application under the quota.

Hi JoeF,

Thanks for the reply. I was 1 year out of side US, before filing fresh H1 in the quota in 2010 and also 2 years out side of US when Visa is under admin process. I got 221g when i went for visa stamping.