Extending H1 visa after staying outside US for a year

[anonymous2013]

Hi,

I was in US for 5 years and my H1 visa is about to expire on 30th January 2013.
However, I left US on 22 Jan 2012 and am planning to come back to US on 23 Jan 2013.

I wanted to know:
1. After coming to US can I get my existing visa (valid till 30th January 2013) to be extended for another year (reclaiming the year I was outside US) without any major issues.
2. Can I file for a new H1 petition (with the same employer) in April while working on the existing petition (assuming that the existing petition gets extended for a year.)

Thanks!

[kabkaba]

Hi,

I was in US for 5 years and my H1 visa is about to expire on 30th January 2013.
However, I left US on 22 Jan 2012 and am planning to come back to US on 23 Jan 2013.

I wanted to know:
1. After coming to US can I get my existing visa (valid till 30th January 2013) to be extended for another year (reclaiming the year I was outside US) without any major issues. -- No problem.
2. Can I file for a new H1 petition (with the same employer) in April while working on the existing petition (assuming that the existing petition gets extended for a year.) -- No, that's not how it works. If you want fresh 6 years using a new cap-subject petition, you should not travel to US now.

Thanks!

See above.

[anonymous2013]

No, that's not how it works. If you want fresh 6 years using a new cap-subject petition, you should not travel to US now.

Thanks for the response.

However, I was under the impression that I could file H1B petition even if one is already valid
But I am not sure if I can hold multiple H1b petitions with the same employer.

[kabkaba]

Filing a cap-exempt petition using cap number from the previous petition will not get you fresh 6 years. For that you need a cap-subject petition which can be filed on or after Apr 1 with an Oct 1 or later start date and the 1 year outside has to be immediately before filing.

[anonymous2013]

Thanks for the response.

Filing a cap-exempt petition using cap number from the previous petition will not get you fresh 6 years.

I don't intend to use the older petition for getting fresh 6 years. That is why I mentioned filing new H1B petition in my original post.

and the 1 year outside has to be immediately before filing.

I could not understand what you meant by this. Could you please clarify this.

Thanks!

[raghvi]

Thanks for the response.


I don't intend to use the older petition for getting fresh 6 years. That is why I mentioned filing new H1B petition in my original post.


I could not understand what you meant by this. Could you please clarify this.

Thanks!

1. As you would have exhausted your 6 Years of old H1, the only way you can file a new H1 is if you stay outside the US for one full year. Just merely staying out for one full year, and reusing an older petition doesnt reset your clock and doesnt grant you eligibility for a fresh H1.
2. The one year stay outside US has to be before new H1 filing, that is one should have been outside US for 1 full year before filing for a fresh H1. In your case though you stayed outside US for 1 Full year, you re entered (or would be rentering) on the basis of an older petition thereby your clock hasnt been reset.

Look at it this way, H1 petition is valid for 6 Years, if you dont utilize the entire 6 Years, like in your case, you can recapture the 6 years time. In order to be eligible for a fresh 6 Years H1, either stay outside US for 1 Full Year after 6 Years completion OR, file a new H1 petition after completing 1 Full Year outside US, even if the 1 Year is during the initial 6 Years period. In your case though you stayed outside for 1 Full Year but travelling on the old petition is preventing the clock to be reset if you travel now on old petition, once 6 Years of Old petition completes you would have to again stay out for 1 Full Year . If you want fresh 6 Years apply in April 2013 cap with start date of Oct 2013 and you would be eligible for fresh 6 Years H1 starting Oct 2013.

This is my opinion not legal advice.

[kabkaba]

If you travel to US now you will have to leave and wait another year before a cap-subject petition can be filed to give you fresh 6 years.