H-1B proving one year outside

[off_bias]

Hello forum members,

 

First off I spent only ~500 days on H-1B:

 

jan 2013 - july 2014

 

I spent the following period hospitalized as well as fighting a lawsuit in NY (not employed, not on any visa):

 

aug 2014 - april 2015

 

Now current employer wants me to get a H-1B for 6 years, so he says prove one year outside. I gave them old I-797 and H-1B termination notice clearly showing ~500 days usage. After which I was present in US but not on any status, just hospitalized and fighting lawsuit. Now they are asking exit passport stamps also as evidence which would not help me as they are within a year, even though I was not in US as H-1B or any employed or any visa status.

 

My questions-

 

-Is old I-797 and H-1B term not enough as evidence?

-Can I prove this one year outside during 2019 extension and just get 3 years now?

-If the maximum they can give is 3 years why are they fighting for 6 years now itself?

 

Thank you so much!

 

 

 

[rahul412]

You need to be OUTSIDE the US for one year, your attorney is correct. You cannot get fresh 6yrs of H1 if you're not outside the US for one year. It doesn't matter if you're in US on some other status, you need to be outside the US.

[JoeF]

To get a new full 6 years, you have to have been abroad for a year at the time a new H1 is filed.

You were in the US, even though not in H1 status, until April 2015, so a new H1 can only be filed one year from your exit in April 2015.

Also, if you overstayed your I-94, you may have a ban.

[off_bias]

I am eligible for 3 years now, then the one year outside residency can be established in 2019, and there is no need to do it now. Am I correct?

 

Thanks for your help!

[rahul412]

I am eligible for 3 years now, then the one year outside residency can be established in 2019, and there is no need to do it now. Am I correct?

 

Thanks for your help!

You will get your remaining H1 now.

[JoeF]

I am eligible for 3 years now, then the one year outside residency can be established in 2019, and there is no need to do it now. Am I correct?

 

Thanks for your help!

 

No, that's not how it works.

When you get the remainder of the H1, the time you spent outside the US resets to 0.

You can't use it anymore.

[off_bias]

You will get your remaining H1 now.

Thank you rahul412. where should I indicate in the I-129 that I just need an extension and not a new 6 year period?

 

No, that's not how it works.

When you get the remainder of the H1, the time you spent outside the US resets to 0.

You can't use it anymore.

Thank you JoeF. where should I indicate in the I-129 that I just need an extension and not a new 6 year period?

 

Also I haven't worked at any company in the last 9 months outside US. Is that going to be a problem at the consulate? Appreciate your help.

 

[JoeF]

Thank you rahul412. where should I indicate in the I-129 that I just need an extension and not a new 6 year period?

 

Thank you JoeF. where should I indicate in the I-129 that I just need an extension and not a new 6 year period?

 

Also I haven't worked at any company in the last 9 months outside US. Is that going to be a problem at the consulate? Appreciate your help.

 

You don't indicate anything.

The employer files the I-129. The employer's lawyer knows how to fill out the form.

[off_bias]

You don't indicate anything.

The employer files the I-129. The employer's lawyer knows how to fill out the form.

 

Indeed. What I meant is, is there a question or option in the I-129 form that requires the petitioner to specify whether an extension is being requested or a new 6 year period is being requested? Thank you!

[JoeF]

Indeed. What I meant is, is there a question or option in the I-129 form that requires the petitioner to specify whether an extension is being requested or a new 6 year period is being requested? Thank you!

 

If it is not filed under the quota the old H1 petition number is mentioned. That's it.

[off_bias]

If it is not filed under the quota the old H1 petition number is mentioned. That's it.

 

Thank you JoeF. So I informed my employer that I have NOT been outside the US for a full calendar year and that I need an extension for the remaining H-1B and not a new H-1B with fresh 6 years.

 

I think they have filed for the latter. My old I-797 etc is in the petition. What needs to be done? How to inform the USCIS of this clarification?

[JoeF]

A new H1 under the quota can only be filed from April 1 on.

If something was filed recently, it obviously would have to have been for the remainder.

Also, if a copy of your old petition was attached, that also indicates that is was a filing for the remainder time.

[off_bias]

If it is not filed under the quota the old H1 petition number is mentioned. That's it.

 

Once again, what must one do if the employer, by mistake, filed for a new 6 year H-1B instead of an extension? Can they inform USCIS somehow? Or does it require re-sending another petition and repaying the fees etc??

 

The cap is not a factor because this is a non-profit institution.

[JoeF]

Once again, what must one do if the employer, by mistake, filed for a new 6 year H-1B instead of an extension? Can they inform USCIS somehow? Or does it require re-sending another petition and repaying the fees etc??

 

The cap is not a factor because this is a non-profit institution.

 

Sigh. You said the old petition was attached. That means USCIS knows it was a petition for the remainder.

You need to relax. They know this stuff.

Nothing needs to be done from your side.