New H1b after completing 6 years on H1b H1-H4-H1

[Neokaran]

Hi Guys

The situation is my 6 Years of H1b was over on May 30 2012.. Since June 1 i am on H4 visa on my Wife's H1b... and i am in US since then..

So my question is ...is it Mandatory to leave the country for 1 year in order to apply a new H1b???? ..

OR can i just apply H1 this year and change my status from H4 to H1b again.. for next 6 years..

Another question : If i am eligible to apply for Fresh H1b this year when can i start my processing ...

H1 Visa application starts from April 1 but my 1 year gap will be over by May 30 2013 ....

So can i apply for a Fresh H1b visa on April 1 2013 and start work after June 1 2013 or i need to wait till June 1 to apply for H1b

Thanks in Advance !!

[Attorney_11]

The law requires that an individual be present outside the United States for one full year before applying for a new H-1B classification and restarting the H-1B six year period. Extensions beyond the sixth year are possible, depending on the stage at which one's green card application is at. Please consult with an immigration attorney to determine personalized options and strategy.

[Neokaran]

The law requires that an individual be present outside the United States for one full year before applying for a new H-1B classification and restarting the H-1B six year period. Extensions beyond the sixth year are possible, depending on the stage at which one's green card application is at. Please consult with an immigration attorney to determine personalized options and strategy.

This does not sound right as per this document below ..

I did a lot of research and found out as per this Memorandum issued by USCIS in 2006 they have clarified this doubt..

http://www.nafsa.org/_/File/_/UCSIC_..._Six_Years.pdf

I think i can apply for Fresh H1 again this year.. i don't need to go out for one year..

I just need to find a good lawyer.. Keeping my fingers crossed !!

[Attorney_11]

This memorandum speaks about recapture of H-1B time for those who have time left over in their initial six years, can extend beyond the six years based on having a green card process started on their behalf and of the fact that time in H-4 of L-2 does not count towards the maximum period of H-1B time. In the situation presented above, the individual has completed all six years prior to entering into H-4, does not speak to being the beneficiary of any green card application, and appears to not have ANY time left over from their initial six years for H-1B status. Thus, they need a new six year period and as originally stated, the law requires that an individual be present outside the United States for one full year before applying for a new H-1B classification and restarting the H-1B six year period. For further clarification, one should consult an immigration attorney to determine personalized options and strategy.

[Neokaran]

Ok i just talked to one of my friends wife.. she was on H1 visa through infosys for 6 years ..

then she applied for COS to H4 just 3-4 months before the expiration of 6 years of H1 visa

and was on H4 for almost 2 years -- never left the country for good - Although they used to go on holiday trips to India ..

and last year again she applied for H1 and she got her approval for fresh H1 for 2 years and 3 months .. and now working on H1 ...

She was never out of the country for 1 full year ...

Now i have an real example in front of me ..

[catx]

Just because it happened to work in one case in no way means that it will work in another case. The USCIS treats and adjudicates each case on its own (with no reference to other cases). The immigration law, regulations, and rules are clear and unambiguous about an individual having to be living (present) outside of the U.S. for at least one year to be eligible for a new H-1B visa. Why wouldn't you accept the authoritative information posted by an immigration attorney (and assume what happened with your "friend's wife" is more accurate). Ignoring the facts of the law is deluding one's self.

[JoeF]

Reposting this from another forum doesn't help. You get the same answer...

That H1 was approved in error. USCIS sometimes makes errors.

They will eventually find out and rescind the H1, making her illegal retroactively.

She needs to talk to a good immigration lawyer ASAP!

[Attorney_23]

Based on what you have described, either your friend has another means of extending her H1B (e.g. pending green card application); or, her H1B was approved in error. If it was approved in error, this can cause problems down the road, especially if she attempts to file for permanent residency. However, whatever occurred, I can assure you she did not properly receive a new H1B because she spent 1 year in H4 status.

As the other attorney has explained to you, in general, a foreign national who has exhausted h/er 6 year period in H1B must leave the U.S. for 1 year to be able to return to H1B status. You presumably came to the Murthy forum to obtain expert advice. You don't need to 'find a good lawyer;' you've already found an excellent lawyer. A lawyer's job is not to give you the answer you would like to hear, but to tell you what the law is and to help guide you through the process.

[Neokaran]

Based on what you have described, either your friend has another means of extending her H1B (e.g. pending green card application); or, her H1B was approved in error. If it was approved in error, this can cause problems down the road, especially if she attempts to file for permanent residency. However, whatever occurred, I can assure you she did not properly receive a new H1B because she spent 1 year in H4 status. As the other attorney has explained to you, in general, a foreign national who has exhausted h/er 6 year period in H1B must leave the U.S. for 1 year to be able to return to H1B status. You presumably came to the Murthy forum to obtain expert advice. You don't need to 'find a good lawyer;' you've already found an excellent lawyer. A lawyer's job is not to give you the answer you would like to hear, but to tell you what the law is and to help guide you through the process.

And i really appreciate all your expert advice here.. i really don't want to hear something which is not right..

Do you see the point of my confusion .. I have a real example in front of me and online everybody suggested that this is not possible

and i know all of you can't be wrong ... She definitely hasn't applied for any green card.. then in this case the only possibility i see is that the H1b was approved in Error .. so i should not take that chance ...