Would I be eligible for Consular processing?

[anir123456]

Hi All,

 

I am currently on deputation in New York and I am returning to India on a study leave for 1 year starting Sep 1st 2014 till Sep 1st 2015. However my Visa is expiring in Feb 2015 and given that I will be in India during that time, I wanted to confirm if I would be eligible for Consular processing after the Visa has expired? To summarize here are the relevant dates for my case –

 

1.)    First H1-B Visa filed – Apr 2008

2.)    H1-B Visa stamped – Nov 2008

3.)    Travelled to USA for the first time – May 2010

4.)    Going on Study Leave to India for 1 year – Sep 1^st 2015

5.)    Current i-94 / i-797 validity – Feb 2014 to Feb 2015 (Currently in USA on this work permit)

 

Would be great if someone can provide some clarification so that I can apply for the Visa extension accordingly. 

 

 

[jairichi]

Only with a valid petition and I797 you are eligible for visa stamping.

[JoeF]

What would the "consular processing" be for?

Consular Processing is a term used to describe getting an Immigrant Visa (i.e., a Greencard) from a consulate.

 

For non-immigrants, there is no such thing as Consular Processing. What there is for non-immigrants is getting a non-immigrant visa from a consulate, which is nothing special. Everybody who wants to travel to the US as non-immigrant needs a visa, issued by a US consulate.

[anir123456]

Okay got it. There seems to be a confusion here. What I meant was out of cap in place of Consular proceessing. So the original query should read as follows - 

-----
I am currently on deputation in New York and I am returning to India on a study leave for 1 year starting Sep 1st 2014 till Sep 1st 2015. However my Visa is expiring in Feb 2015 and given that I will be in India during that time, I wanted to confirm if I would be eligible for Consular processing   "Out Of Cap" extension after the Visa has expired? To summarize here are the relevant dates for my case –

 

1.)    First H1-B Visa filed – Apr 2008

2.)    H1-B Visa stamped – Nov 2008

3.)    Travelled to USA for the first time – May 2010

4.)    Going on Study Leave to India for 1 year – Sep 1^st 2015

5.)    Current i-94 / i-797 validity – Feb 2014 to Feb 2015 (Currently in USA on this work permit)

 

Would be great if someone can provide some clarification so that I can apply for the Visa extension accordingly. 

[anir123456]

Can someone please help me with my query..

[JoeF]

Hmm, sorry, but it also has nothing to do with "out of cap."

 

An employer can file an H1 petition for you at any time if you haven't used up the whole 6 years. That's the "out of cap" stuff. Being inside or outside the US doesn't even come into play for that.

Once that H1 petition is approved, you can use the approval notice to apply for an H1 visa at a consulate.

The only "special" thing in your situation is that the H1 petition would not be approved as change of status, since that would require the beneficiary to be in the US in a valid status. But even somebody who got an H1 petition approved as COS would have to use the approval notice to get a visa from a consulate if that person travels out of the country.

 

So, summary: In your case, an H1 petition, if approved, would not be approved as COS. But you can of course get a visa like everybody else with an approved H1 petition.

[jairichi]

Can someone please help me with my query..

Yes, an employer can file a cap exempt H1B petition and with a valid I797 you can approach US consulate for H1B visa.

[anir123456]

Hmm, sorry, but it also has nothing to do with "out of cap."

 

An employer can file an H1 petition for you at any time if you haven't used up the whole 6 years. That's the "out of cap" stuff. Being inside or outside the US doesn't even come into play for that.

Once that H1 petition is approved, you can use the approval notice to apply for an H1 visa at a consulate.

The only "special" thing in your situation is that the H1 petition would not be approved as change of status, since that would require the beneficiary to be in the US in a valid status. But even somebody who got an H1 petition approved as COS would have to use the approval notice to get a visa from a consulate if that person travels out of the country.

 

So, summary: In your case, an H1 petition, if approved, would not be approved as COS. But you can of course get a visa like everybody else with an approved H1 petition.

Thanks JoeF & jairichi. Could you also help me understand the 6 year clause you described here - 

http://forum.murthy.com/index.php?/topic/34928-cap-exempt/?p=128846

My H1 petition was first approved in 2008 (by lottery). By the clause described in the above link does it mean that I will not be eligible for "out of cap" H1 filing when I am done with my studies next year (July 2015)?

 

Many thanks for your prompt help on the forum as always :)

 

[anir123456]

Dear members / seniors in the forum, would be grateful if you can kindly help me with my query.

[jairichi]

Dear members / seniors in the forum, would be grateful if you can kindly help me with my query.

Talk to an attorney from Murthy law firm as they have successfully filed cap exempt H1B petition even after 6 years of initial cap subject H1B approval.

[pontevecchio]

Once cap counted you have a total of 6 years spread out over any number of years. If you finish 2 years and leave for say one year or more you can either get a new 6 years by being selected again for the cap and starting work in October or you can utilize the remaining 4 years at any time after a H1 petition non cap is filed and approved. This holds true even if more than 6 years have elapsed since the original H1 petition was approved. Is this automatic? Possibly not. You will need to use a Good Lawyer to process appropriately. There are some legal nuances which apply. As advised discuss your situation with the Murthy firm.

[anir123456]

Thanks jairichi & pontevecchio for the pointers. Very helpful!!

Since I am already with a company & will be in India while applying the out of cap H1 next year, I am not sure how to engage Murthy law firm in my case since the case will be handled by the company's immigration team.

If suppose I leave my current employer, can I approach Murthy law firm to file the out of cap H1 petition for me? 

[jairichi]

Thanks jairichi & pontevecchio for the pointers. Very helpful!!

Since I am already with a company & will be in India while applying the out of cap H1 next year, I am not sure how to engage Murthy law firm in my case since the case will be handled by the company's immigration team.

If suppose I leave my current employer, can I approach Murthy law firm to file the out of cap H1 petition for me? 

You can have a consultation with an attorney from Murthy law firm in India to get an idea. They have branches there. Also, it is the employer who chooses a law firm and not you.