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New H1B possible If extended old H1B for remainder period after resetting clock??

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  • New H1B possible If extended old H1B for remainder period after resetting clock??

    Hi All,

    Apparently a peculiar case, seek some answers if you have faced it yourself or know it for sure. Appreciate your response in advance.

    I worked in US since March 2006 - July 2009 (extended H1B for 3 years) and then was out of US for more than a year.
    I came back in Oct 2010 on my extended petition which was set to be expired in Sep 2011.

    Certainly there were 2 option after Sep 2011:
    1. Apply for a fresh H1B because of eligibility due to staying more than a year out of US.
    2. Go for extending old H1B to claim the remaining of 6 years. ------------------------- Unfortunately I did this and got extension upto June, 2013.

    Question is -
    Can I now apply for a new fresh H1B based on more than a year spent outside of US (July, 2009 - Oct, 2010) ?
    Or I cannot because I am going to complete 6 years starting when I came first to H1B through extensions even though I stayed for more than a year outside?

    If I managed to confuse you enough, I will be happy to explain the situation in better way.

  • #2
    You cannot.

    They look at "immediate prior year." 2009-2010 is not immediate prior year in your case. So if you are seeking fresh H1; At the time of applying for H1, in the immediate prior year you should have been outside US.

    An H-1B alien in a specialty occupation . . . who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

    This is my opinion not legal advice.

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