What is my current H1B Status

[kswamin]

Hello,

 

I moved to USA in August 2008 to do my MS. After completion of my MS in 2010, I got a full time job offer with an american company based in North Carolina. I joined them with first under my OPT and later the employer filed for my H1B. I received my H1B in Oct 2010. After working with the company until November 2011, I had to move back to India due to health conditions of my parents after parting with the company on good terms. I was working in India between December 2011 until June 2013 and currently I'm working in Germany as a full time employer in a Germany research Lab. My H1B visa stamp on my passport was from Oct 2010 to Sept 2013.

 

Currently Im trying for opportunities back in US and am interviewing with a couple of companies. One of them has shown interest in me and hence I need the following questions answered

 

1. What is my current H1B status? Is my I-797 still valid?

2. Should the new US employer file for a fresh H1B petition for me or should they file for a H1B transfer?

3. What is non cap or cap-exempt H1B? Am I eligible in this case?

4. I verified my receipt number of my old H1B petition and it shows - 

Decision

On October 27, 2010, this I129 PETITION FOR A NONIMMIGRANT WORKER was approved and we sent you an e-mail notice. 

 

Does this mean that my visa is still valid?

5. Since I worked from Oct 2010 to Nov 2011, I have utilized 1 year and 1 month of my H1B period. Would that mean, the new employer can simply reactivate my H1B once again by doing H1B transfer?

6. Since I have lived outside USA since Nov 2011 - which is around 2 years and 3 months as of Feb 2014, would it affect my chances of re-entering US?

 

Thanks

Kaushik

[pontevecchio]

1. Both questions are immaterial and irrelevant.  You have no "status" outside the USA. You have been cap counted. You are entitled to the remaining 5 years in H1 status non cap. The new company needs to file a H1 petition for you.

2. A 'transfer" only refers to a person already in H1 status here changing companies and it ALWAYS involves a new non cap H1 petition.

3.See 1. and 2.

4. A petition is not a visa. When you left the old company should have revoked that petition as per law. You are entitled to the remainder option of 5 years in your H1 non cap.

5. No reactivation. A new non cap H1 petition.

6. No connection of any sort.

[jairichi]

Hello,

 

I moved to USA in August 2008 to do my MS. After completion of my MS in 2010, I got a full time job offer with an american company based in North Carolina. I joined them with first under my OPT and later the employer filed for my H1B. I received my H1B in Oct 2010. After working with the company until November 2011, I had to move back to India due to health conditions of my parents after parting with the company on good terms. I was working in India between December 2011 until June 2013 and currently I'm working in Germany as a full time employer in a Germany research Lab. My H1B visa stamp on my passport was from Oct 2010 to Sept 2013.

 

Currently Im trying for opportunities back in US and am interviewing with a couple of companies. One of them has shown interest in me and hence I need the following questions answered

 

1. What is my current H1B status? Is my I-797 still valid?

2. Should the new US employer file for a fresh H1B petition for me or should they file for a H1B transfer?

3. What is non cap or cap-exempt H1B? Am I eligible in this case?

4. I verified my receipt number of my old H1B petition and it shows - 

Decision

On October 27, 2010, this I129 PETITION FOR A NONIMMIGRANT WORKER was approved and we sent you an e-mail notice. 

 

Does this mean that my visa is still valid?

5. Since I worked from Oct 2010 to Nov 2011, I have utilized 1 year and 1 month of my H1B period. Would that mean, the new employer can simply reactivate my H1B once again by doing H1B transfer?

6. Since I have lived outside USA since Nov 2011 - which is around 2 years and 3 months as of Feb 2014, would it affect my chances of re-entering US?

 

Thanks

Kaushik

Since you are counted once against cap and have not used the maximum allowed 6 years on H1B you are cap exempt. This means a new employer can file a cap exempt H1B petition anytime and on approval you would get 6 years - 1.1 years spent in US on H1B. Later with an approved H1B visa and new employer's I797 you can enter US and start working for employer.

 

Alternatively, since you have stayed outside US for more than 365 days an employer can file a cap subject H1B petition in April 2014 and on approval you can start working for new employer from 1st oct with new H1B visa and new I797.

 

You living outside US for all these days will not affect the outcome of H1B petition.

[JoeF]

You only have a status by definition if you are in the US.

If you have been counted for the H1 quota and haven't used the full 6 years, an employer can file an H1 for you for the remainder time at any time. Or, an employer can file an H1 in the quota for a start date of Oct. 1, and that would get you a new full 6 years.

[kswamin]

Hello all,

 

Thanks for your replies. The company that I was talking about in my post earlier is almost in the final stages of making an offer. The hiring manager has said that the HR will next discuss with me regarding my visa.

 

As per your comments, this is my current status -

 

1. Since I used only one year in my previous H1B, I still have 5 years remaining on my H1B. This is right?

2. If the salary and offer is finalized, then the employer must file for an H1B petition under non cap. The hiring manager mentioned that the HR will discuss about my H1B "transfer" in his email to me, but you guys mentioned that since Im not in US it wont be a "transfer" but a new petition under non cap. How different is it from H1B transfer? What is the time for me to get the required approval documentation from USCIS so that I can go for stamping since my old visa is expired?

 

Please advice so that I can give correct information to the HR. Also what documents should I give the HR for initiating the H1B petition? I have been out of US for 3 years now but Im currently working in Germany. What about paystubs? Should I give the current company's paystub?

 

Thanks

Kaushik

[jairichi]

Hello all,

 

Thanks for your replies. The company that I was talking about in my post earlier is almost in the final stages of making an offer. The hiring manager has said that the HR will next discuss with me regarding my visa.

 

As per your comments, this is my current status -

 

1. Since I used only one year in my previous H1B, I still have 5 years remaining on my H1B. This is right?

2. If the salary and offer is finalized, then the employer must file for an H1B petition under non cap. The hiring manager mentioned that the HR will discuss about my H1B "transfer" in his email to me, but you guys mentioned that since Im not in US it wont be a "transfer" but a new petition under non cap. How different is it from H1B transfer? What is the time for me to get the required approval documentation from USCIS so that I can go for stamping since my old visa is expired?

 

Please advice so that I can give correct information to the HR. Also what documents should I give the HR for initiating the H1B petition? I have been out of US for 3 years now but Im currently working in Germany. What about paystubs? Should I give the current company's paystub?

 

Thanks

Kaushik

1. Yes, you are eligible for 4 years and 11 months.

2. A transfer is nothing but a new H1B petition that is not subject to cap. 3 to 4 months by regular processing and 15 calendar days by premium processing.

 

No need for pay stubs as you are outside US and so currently do not hold any immigration status of US.

[kswamin]

Hello all,

 

I was scheduled for another 3 rounds of interview from the last time I posted here. It seems its the company's protocol for 6 people to interview the candidate. So, Im done with all the interview process. In between like I said, the HR enquired about the amount of time remaining on my H1B which I told them is 4 years and 11 months now. I'm confident that I aced the interviews and company should make a final offer this week hopefully :)

 

My questions

1. What is I-140, I-797, I797A/C, I-485. So many forms!!!! I'm confused. Assuming the HR makes an offer and I accept it, and as per what you guys told, they can file for H1B transfer under premium processing. What happens by end of 15 days? The company is based in San Jose. How long does it take for processing in California USCIS?

2. Will I get I797 after 15 days? If yes, I need to go to Munich US consulate office. The new I797 along with offer letter, and my old H1B filing papers is sufficient?

3. What is I-485? Should the company apply for that?

4. My wife is here with me. What are the steps related to H4? I dont have my wedding album here, but since we both are here in Germany already with German Visa and she is my dependent is this sufficient enough to prove our marriage? I also have my marriage certificate with me here in Munich.

 

Please if any of you could give me a flowchart or step by step as what happens from here it will be very helpful. I will be very grateful for your help so that I can plan my relocation accordingly

 

Thanks

Kaushik

[jairichi]

Hello all,

 

I was scheduled for another 3 rounds of interview from the last time I posted here. It seems its the company's protocol for 6 people to interview the candidate. So, Im done with all the interview process. In between like I said, the HR enquired about the amount of time remaining on my H1B which I told them is 4 years and 11 months now. I'm confident that I aced the interviews and company should make a final offer this week hopefully :)

 

My questions

1. What is I-140, I-797, I797A/C, I-485. So many forms!!!! I'm confused. Assuming the HR makes an offer and I accept it, and as per what you guys told, they can file for H1B transfer under premium processing. What happens by end of 15 days? The company is based in San Jose. How long does it take for processing in California USCIS?

2. Will I get I797 after 15 days? If yes, I need to go to Munich US consulate office. The new I797 along with offer letter, and my old H1B filing papers is sufficient?

3. What is I-485? Should the company apply for that?

4. My wife is here with me. What are the steps related to H4? I dont have my wedding album here, but since we both are here in Germany already with German Visa and she is my dependent is this sufficient enough to prove our marriage? I also have my marriage certificate with me here in Munich.

 

Please if any of you could give me a flowchart or step by step as what happens from here it will be very helpful. I will be very grateful for your help so that I can plan my relocation accordingly

 

Thanks

Kaushik

1. I797 is approval notice of any application made to USCIS. I140 and I485 are GC process applications. By PP if all your documents are good you would get a decision in 15 calendar days.

2. Your employer's attorney would get an email whether it is an approval or denial. Later within a week your I797 would be received by postal mail.

3. Company has to first file a PERM and after approval followed by I-140 and then I485. Update yourself by looking at EB GC process in USCIS website.

4. Your wife needs to apply for a H4 visa at US consulate with a copy of your I797 approval notice and marriage certificate.

[JoeF]

Hello all,

 

I was scheduled for another 3 rounds of interview from the last time I posted here. It seems its the company's protocol for 6 people to interview the candidate. So, Im done with all the interview process. In between like I said, the HR enquired about the amount of time remaining on my H1B which I told them is 4 years and 11 months now. I'm confident that I aced the interviews and company should make a final offer this week hopefully :)

 

My questions

1. What is I-140, I-797, I797A/C, I-485. So many forms!!!! I'm confused. Assuming the HR makes an offer and I accept it, and as per what you guys told, they can file for H1B transfer under premium processing. What happens by end of 15 days? The company is based in San Jose. How long does it take for processing in California USCIS?

2. Will I get I797 after 15 days? If yes, I need to go to Munich US consulate office. The new I797 along with offer letter, and my old H1B filing papers is sufficient?

3. What is I-485? Should the company apply for that?

4. My wife is here with me. What are the steps related to H4? I dont have my wedding album here, but since we both are here in Germany already with German Visa and she is my dependent is this sufficient enough to prove our marriage? I also have my marriage certificate with me here in Munich.

 

Please if any of you could give me a flowchart or step by step as what happens from here it will be very helpful. I will be very grateful for your help so that I can plan my relocation accordingly

 

Thanks

Kaushik

I-140 and I-485 are for a Greencard. That comes later. First, concentrate on the H1.

The I-797 is the H1 receipt/approval notice sent by USCIS. A/B/C specifies if it is receipt, or approval, or denial notices.

See http://www.uscis.gov/i-797-info

For an H4, the H1 approval notice and the marriage certificate are needed.