H1B Max Out Period Calculation

[h1bSixYears]

Hi,

 

I need your help in determining how my H1B 6 years stay will be counted since I have stayed in US initially on L1B visa and then on H1B.

 

I first came to US in July 2008 on a L1B  visa, which was valid till Nov 2010 (approx. 2 yrs, 4 months). My employer had filed for its extension in Aug 2010 but it got rejected in Oct 2010. My employer then filed for Change of Status to H1B under Premium category but I got an RFE from USCIS and since my L1B was about to expire in few days on Nov 30, I went back to India.

 

After going back to India and responding to the RFE for my H1B petition, it finally got approved in Jan 2011. COS was denied since I was in India at that time but H1B petition was approved. Due to Visa issues, I stayed back in India till May 2011 and then travelled back to US on this new H1B visa, (after staying in India for roughly 6 months from Dec 2010 till May 2011). This H1b petition was initially valid till Feb 2013 and then I got an extension for another 3 years till Feb 2016.

 

I just wanted to make sure that USCIS did not approved my H1B petition till Feb 2016 by mistake, since if my stay on L1B visa of 2 yrs and 4 months is to be counted then I will be completing my six years in Dec 2014. I would like to get some clarification on whether my stay on L1 should also be counted in my six year limit on H1B in this scenario. One of my friend said that since my H1B petition was approved while I was in India, my stay on L1B visa would not be counted towards the six year limit on H1B petition. Is that true?

 

 

 

[jairichi]

What your friend said was wrong. Only if a cap subject H1B petition was filed after you stayed outside US for a year then you get fresh 6 years. It did not happen in your case. So, exit US when your L1B and H1B duration of stay reaches 6 years. USCIS has approved it in error.

[h1bSixYears]

Thanks for the reply. When my H1B was filed in Nov 2010 it was a cap subject H1B petition as that year the H1B quota was not filled in till December. Dose it have to be filed after staying outside US for a year to get the fresh 6 years?

[itsmeusa]

That's right. To get fresh 6 years on H1b, you should stay out of US for a complete 365 days and the file H1b (cap) petition.

[jairichi]

Thanks for the reply. When my H1B was filed in Nov 2010 it was a cap subject H1B petition as that year the H1B quota was not filled in till December. Dose it have to be filed after staying outside US for a year to get the fresh 6 years?

Yes, that is correct. Filing of petition has to be after a year of stay outside US.

[prernasrk]

Hi SixYears,

what did you about your situation ? I’m in a similar situation.