H1B expired but used only 3 years

[hpsbsr]

Hi,

I have a H1B visa which expired 2 years ago. I have however used only 2.5 years of that H1B.

Initially my Visa petition was approved in year 2004 after which the extension was approved in 2007. The extension was approved till 2010 February. I got the stamping done in year 2009 which wasalso valid till Feb 2010.

Currently am in US on a L1B visa (through same company that earlier filed H1B). Can i use the previous H1B visa to get employment in US? What shall be the process to get this old H1B visa activated and transferred to the new employer.
Got to know from someone that my case would be cap-exempt and I can claim the remaining 3.5 years and it will just be a H1 transfer to the new employer. Need your expert opinion on this.

Please help, its little urgent from my side.
I appreciate your replies.

Regards,
hpsbsr

[shervin143]

Any employer can file a COS from L1 to H1B using the CAP from the previous H1B approval notice and request an immediate start date. Upon approval, you should start working for the H1B sponsor as of the H1B effective date. Any employment with the L1 employer after the H1B effective date is illegal.

H1B + L1 in total is for 6 years. So you will get only the remaining period in that CAP when you file a COS from L1 to H1B. You cannot work for the H1B sponsor until the COS gets approved (The H1B approval should come with a new I-94).

[hpsbsr]

H1B expired but used only 3 years

Thanks for the quick reply shervin143

I have a few further queries. Please excuse my naiveness.

1) What exactly is done in Change of Status? And how long does it usually take?

2) The H1B approval should come with a new I-94 - Does that mean I will have to go out of US and then come back after the stamping before I can take up the new employment in US?

3) TIll when can I go for COS- given the fact that my initial H1B petition was approved in 2003 and the extension was approved in 2007.

I appreciate and thank you from heart for taking out time to answer my questions.

Regards,
hpsbsr

[shervin143]

1) What exactly is done in Change of Status?
>>> Form I-129 is filed with an option selected as change of status from L1 to H1B. The attorney who files your petition will know what to do. Just give them a copy of your existing L1 approval notice and a copy of your existing L1 I-94. Also, give the employer a copy of your previous H1B approval notice so that the CAP from that petition can used while filing a new one with an immediate start date.

And how long does it usually take?
>>> 15 days by premium and 2-4 months by normal process.

2) The H1B approval should come with a new I-94 - Does that mean I will have to go out of US and then come back after the stamping before I can take up the new employment in US?
>>> No. If your H1B approval notice comes with a new I-94 attached to the bottom, then you can start working for the new employer as of the H1B effective date. If not, then you have to leave the country and return back in H1B visa which will get you a new I-94 associated to H1B at the POE.

3) TIll when can I go for COS- given the fact that my initial H1B petition was approved in 2003 and the extension was approved in 2007.
>>> COS can be filed any time as long as you are maintaining your L1 status. COS from L1 to H1B can be filed on a new or existing CAP.

[hpsbsr]

H1B expired but used only 3 years

Thanks Sherwin.. You are a big help

One further query.. Sorry if am digging too much

3) TIll when can I go for COS- given the fact that my initial H1B petition was approved in 2003 and the extension was approved in 2007.

>>> COS can be filed any time as long as you are maintaining your L1 status. COS from L1 to H1B can be filed on a new or existing CAP.

a) On my expired H1, I used 2.75 years. Currently am in US on L1B visa, so the time spent in this L1B will be added to the H1's 2.75 to find out final remaining time??

b) Also, I heard there is some 6 year limit on using the previous cap. In my case, the H1B petition was approved in 2004 and then extension was approved in 2007. So till what time can I use this H1B cap. That way I would not have to file a new H1B visa altogether.

[shervin143]

a) On my expired H1, I used 2.75 years. Currently am in US on L1B visa, so the time spent in this L1B will be added to the H1's 2.75 to find out final remaining time??
>>> Yes. If you spent 1 year outside U.S before filing a new L1, then in that case if you opt for a fresh new H1B (under a new CAP with start date of Oct 1st 2012) then your 6 year period will be 6 year minis time spend in L1. If you use the old H1B CAP, the the remaining period will be 6 year minus time already spend in that H1B CAP minus time spendin L1.

b) Also, I heard there is some 6 year limit on using the previous cap. In my case, the H1B petition was approved in 2004 and then extension was approved in 2007. So till what time can I use this H1B cap. That way I would not have to file a new H1B visa altogether.
>>> That is kind of agrey area. But since you had an extension in 2007, I belive you can still use that CAP. Give it a try. If it doesn't work, then your on;y option is to go for a new CAP. If you go for a new CAP, you will get more time to stay/work in U.S.

[hpsbsr]

Thanks a ton Sherwin.. I have much more clarity on this now..

You have been a great help....

regards

[hpsbsr]

H1B expired but used only 3 years

Hi Sherwin,

pardon me for bugging you so many times...
In this case if I use the previous cap and the expired Visa, then will the new employer have to file a seperate H1 petition for me, or he will simply file for a L1B to H1B change of status.
And how complicated usually is this process? and the fees involved?

Is this a secure way? i mean would the employer be ready to take this path easily or are there some complexities or catches involved.

Thanks a lot for your advice...

regards

[shervin143]

There is absolutely no difference in the process. Irrespective of whether you go thorugh a new CAP or an existing CAP, whether you file it as a COS or for consular process, they are all the same. The employer will need to file form I-129 in all tehse cases. Just the option (some checkboxes) that they will select in form I-129 will differ based on your case.

[SwapDud]

Expired H1b, which was utilized for just 3 months

I have a similar situation. I had an H1b which expired in August 2011. I had just utilized it for 3 months out of the 3 years that it was valid. Currently, I am on H4 now. I possess IT Consulting experience of 5 years.
1. I would like to know if the expired H1 can be re opened/ re filed (without the cap).
2. can H4 be converted to H1 and
3. when can I effectively start working?

Thanks for all your replies.
--

[shervin143]

1. I would like to know if the expired H1 can be re opened/ re filed (without the cap).
>>> There is no such thing as re-opening an expired H1B. Any employer can file a new H1B petition using the CAP from the previous H1B approval notice and request an immediate start date. You don't have togo though CAP again.

2. can H4 be converted to H1 and
>>> Yes.

3. when can I effectively start working?
>>> After the H1B gets approved and as of the H1B effective date (will be mentioned in the H1B approval). If yu want to work without leaving the country and re-entering in H1B visa, then the H1B should be filed as a COS from L1 and the H1B approval should come with a new I-94.

[MBATechGrad]

Hi Shervin,
Thank you for providing detailed clarification. This is really good. I am also in similar boat and would like to seek your inputs -

1. I was told that stay under L1B visa doesn't get consider while calculating remaining stay under H1B. However based on your response, it looks like total stay (on L1+H1 visa) is maximum 6 years. Could you please confirm?

2. My H1B was valid till Oct, 2008 (through employer A). From Oct 2009 to Mar 2011, I was on L1-A (through the same employer). Now I am currently on L1 B since past 3 months (through employer B) after spending 2 years in India in past 2.5 years.
I am told I can get new H1 B CAP exempt considering my previous H1-B was valid till Oct, 2008. Could you please confirm? if so, What's the maximum duration I may get considering I have spent 1.5 years on L1 (both A and B) in past 4 years.

Appreciate your help.

Regards

a) On my expired H1, I used 2.75 years. Currently am in US on L1B visa, so the time spent in this L1B will be added to the H1's 2.75 to find out final remaining time??
>>> Yes. If you spent 1 year outside U.S before filing a new L1, then in that case if you opt for a fresh new H1B (under a new CAP with start date of Oct 1st 2012) then your 6 year period will be 6 year minis time spend in L1. If you use the old H1B CAP, the the remaining period will be 6 year minus time already spend in that H1B CAP minus time spendin L1.

b) Also, I heard there is some 6 year limit on using the previous cap. In my case, the H1B petition was approved in 2004 and then extension was approved in 2007. So till what time can I use this H1B cap. That way I would not have to file a new H1B visa altogether.
>>> That is kind of agrey area. But since you had an extension in 2007, I belive you can still use that CAP. Give it a try. If it doesn't work, then your on;y option is to go for a new CAP. If you go for a new CAP, you will get more time to stay/work in U.S.

[raghvi]

1. L1 + H1 can at max be 6 Years if there is no 1 Year gap in between the two . Even if there is a gap of more than 1 Year between the two if the H1 is a old cap exempt petition L1 time will still get added.
2. Read around for H1B remainder option. I believe it means if one was on H1 status in last 6 Years, but hasnt used the complete 6 Years of H1 then the person can recliam the remaining time. Now your situation becomes complex because you were on both L1A and L1B with more than a year gap in last 6 Years. IN my opinion you should get 6 Minus time spent in H1 and L1 statuses in last 6 Years.. But I may be wrong, do check with a lawyer.

This is my opinion not legal advice.

[MBATechGrad]

Thank you Raghvi. yes it looks like duration on L1 visa will also get counted. But it should be OK because I have spent only 4.0 years in US so far (on H1 + L1A +L1B combined).
Regarding remainder option, i didn't find any rule with specific mention to L1A or L1B. As long as there is some time remaining on my H1-B visa, it should be OK to get new H1 for remaining period (regardless of when the original H1 B was issued). Hope I have understood it correctly? Can guru over here please reconfirm?

1. L1 + H1 can at max be 6 Years if there is no 1 Year gap in between the two . Even if there is a gap of more than 1 Year between the two if the H1 is a old cap exempt petition L1 time will still get added.
2. Read around for H1B remainder option. I believe it means if one was on H1 status in last 6 Years, but hasnt used the complete 6 Years of H1 then the person can recliam the remaining time. Now your situation becomes complex because you were on both L1A and L1B with more than a year gap in last 6 Years. IN my opinion you should get 6 Minus time spent in H1 and L1 statuses in last 6 Years.. But I may be wrong, do check with a lawyer.

This is my opinion not legal advice.

[MBATechGrad]

Hi, Could some expert please confirm? Or share contact details of renowned lawyer who may be of help. Appreciate it.

Thank You

Thank you Raghvi. yes it looks like duration on L1 visa will also get counted. But it should be OK because I have spent only 4.0 years in US so far (on H1 + L1A +L1B combined).
Regarding remainder option, i didn't find any rule with specific mention to L1A or L1B. As long as there is some time remaining on my H1-B visa, it should be OK to get new H1 for remaining period (regardless of when the original H1 B was issued). Hope I have understood it correctly? Can guru over here please reconfirm?