H1B Cap Exempt eligibility

[asawhney]

I worked on H1B visa from Oct 2007 to Dec 2012 and returned to India on 11th Jan 2013. My visa is approved till Oct 2013 and I am planning to go back to the US by next year. I am planning to go back to the US next year on H1B and apply for GC. My question is will the new employer be able to file my H1 based on the existing visa which has about 11 months remaining on it or will it have to apply for a new H1 (since I would have completed a year in India). Also, in the first case is it advisable to travel and apply for GC since I have only 11 months left on it and will need perm approval to apply for 7th year extension. Please Advise.

[jairichi]

I worked on H1B visa from Oct 2007 to Dec 2012 and returned to India on 11th Jan 2013. My visa is approved till Oct 2013 and I am planning to go back to the US by next year. I am planning to go back to the US next year on H1B and apply for GC. My question is will the new employer be able to file my H1 based on the existing visa which has about 11 months remaining on it or will it have to apply for a new H1 (since I would have completed a year in India). Also, in the first case is it advisable to travel and apply for GC since I have only 11 months left on it and will need perm approval to apply for 7th year extension. Please Advise.

You are cap exempt and you can get the remaining 11 months.

[t75]

YOU cannot apply for a GC. SInce you do not even have a prospective employer, it is premature to base anything on that.

Read the forum about the different scenarios.

[JoeF]

You can get the remainder time without being subject to the quota, or the employer can file a new H1 under the quota.

[asawhney]

I would like to add that my current employer is the one holding my H1B and I am planning to take up an onsite project through the same employer.

[jairichi]

I would like to add that my current employer is the one holding my H1B and I am planning to take up an onsite project through the same employer.

Does not make any difference.

[asawhney]

What about getting the 7th year extension? I've not yet started the GC process but plan to begin soon after reaching the US. My concern is, to get the 7th year extension can my employer file for PERM while I am still in India. If that is possible I can travel in a month or 2 so that I meet the 365 days requirement for PERM application and don't have to come back again for the 7th year extension. Please advise.  

[jairichi]

What about getting the 7th year extension? I've not yet started the GC process but plan to begin soon after reaching the US. My concern is, to get the 7th year extension can my employer file for PERM while I am still in India. If that is possible I can travel in a month or 2 so that I meet the 365 days requirement for PERM application and don't have to come back again for the 7th year extension. Please advise.  

Based on PERM or I-140 pending for more than a year or on approved I-140 employer can file for extension. This can be done anywhere.

[t75]

Your employer must recruit for the position before filing for your GC. Since you are not even in the US at this time, there are likely many people interested in the position - including USCs currently residing outside the US.  YOU can do NOTHING - NADA - about filing for a GC.