Is the H1 reset after a year of out of the country before filing again ?

[Anagan]

Hi, 

 

I have been asked to leave to India urgently by my Company since they just found that the I have crossed 6 years of stay.  My companies immigration support department is known to make mistakes, hence I am reaching your help.  

 

1. I was in US for 3 years between 2004 and 2007 in H1.  

2. I left to India in Sep 2007, with a H1 extension which was Valid till 2009 Feb.

3. In Jan 2009, my company applied for a H1. ( I have been out of US for 1 year by then)

4. From this I had the H1 with validity from March, 2009. (I assumed that this has 6 years validity since I stayed out of the country for more than a year before it was applied again)

5. I traveled back to US in July 2010 and I am continuing my assignment.  

6. I applied for an extension in Dec 2012 and USCIS extended the validity till 2015 August.  

7. My Company's Visa immigration support department now says that the H1 application in point # 4 is a cap exempt case (as the validity started in March, instead of Oct) and it is an extension of my old H1: USCIS has extended validity by mistake till 2015 Aug, instead of rejecting.  So, I cannot stay anymore. 

 

My US stay history.

Visa Type
(History)

Date of entry to U.S. 

Date of Departure from U.S. 

Days Spent In US

H1

7/10/2004

6/22/2007

1077

H1

7/18/2007

8/30/2007

43

India

9/1/2007

7/13/2010

2 years 10 months

H1

7/14/2010

2/2/2011

203

H1

3/2/2011

7/11/2013

862

 

Could you please let me know if my H1 (post 2009, March) has 6 years validity ?

 

Is there a way to correct the issue if it is there or should I leave ? 

[JoeF]

You only get a new 6 years if you are outside the US for at least one year, and then an employer files a NEW H1 under the quota.

If you come back based on the same H1 instead, you only get the remainder time.

[jairichi]

Your employer is right. As your H1B started with a validity from March 2009 it is a cap exempt petition. If they had filed a cap subject petition that time with a start date of Oct 1st 2009 you would have got 6 years.