H1B - CAP approved in the 6th year, can i renew it if i stay outside US for one yr

[jjoseph]

Dear Friends,

i am completng my 5 year L1B term in November, 2013. I have got the H1- CAP petition approved which is valid until November 2014. So by November 2014, i will be completing my 6 year term in US.

I asked my employer to file my green card but it looks like they would not do it. So i am looking for alternate options.

I understand that in order to extend my H1 post Nov 2014, my labour has to be started atleast in November this year (365 days before expiry). So if my labour is not started in november this year, what would be the best option for me?

1) My H1 is filed as consular processing and it is not activated now. If i dont utilize my H1 now and if i stay outside US for one full year, will i be able to renew the same H1 next year under CAP EXEMPT? If yes, will i be getting a fresh 6 year term?

2) If i activate my H1 now and work until Feb 2014 and go back to my home country, i will have 8 months left on my H1B. In february, if i go back to India and stay there for one full year, will i be able to renew the same H1 for another 5.6 years?

please advice

Thanks,

JJoseph

[Nattybone]

Dear Friends,

i am completng my 5 year L1B term in November, 2013. I have got the H1- CAP petition approved which is valid until November 2014. So by November 2014, i will be completing my 6 year term in US.

I asked my employer to file my green card but it looks like they would not do it. So i am looking for alternate options.

I understand that in order to extend my H1 post Nov 2014, my labour has to be started atleast in November this year (365 days before expiry). So if my labour is not started in november this year, what would be the best option for me?

1) My H1 is filed as consular processing and it is not activated now. If i dont utilize my H1 now and if i stay outside US for one full year, will i be able to renew the same H1 next year under CAP EXEMPT? If yes, will i be getting a fresh 6 year term?

2) If i activate my H1 now and work until Feb 2014 and go back to my home country, i will have 8 months left on my H1B. In february, if i go back to India and stay there for one full year, will i be able to renew the same H1 for another 5.6 years?

please advice

Thanks,

JJoseph

Hello, Joseph.

If i understand correctly, this H1B petition will form part of the total 6 years allowed on H1 + L1, as there is no 1 year break in your L status. Even if you stay outside US, this particular petition is part of the 6 years as it was filed when you were on active L1.

What i understand is, you need to stay outside for 1 year and THEN apply independent of the older application. You should consult an attorney to get a better perspective. This is my understanding, i am not a professional.

Wishing you luck.

Cheers,

[raghvi]

Hello, Joseph.

If i understand correctly, this H1B petition will form part of the total 6 years allowed on H1 + L1, as there is no 1 year break in your L status. Even if you stay outside US, this particular petition is part of the 6 years as it was filed when you were on active L1.

What i understand is, you need to stay outside for 1 year and THEN apply independent of the older application. You should consult an attorney to get a better perspective. This is my understanding, i am not a professional.

Wishing you luck.

Cheers,

Another thing I am wondering is that if your H1 is not "activated", how are you going to continue work after completing 5 Years of L1B in Nov 2013? If you want to work beyond Nov 2013 you have to move to H1 either by leaving US, and gettign H1 stamped, or by filing an amendment to H1 to convert from consular to COS.

This is my opinion not legal advice.

[jjoseph]

Nattybone and raghvi - Thanks for your advice and response.

i am trying to find the alternatives because my employer may not file a GC for me. so the maximum i can stay in US is till nov 2014.

My H1B CAP was filed as consular processing so even if i start working on h1 now, i wont be able to stay beyond nov '14. So i was wondering i have the approved H1 now and if i do not use it at all (not even H1 stamping), i may be able to use it next year without going through CAP quota. I was trying to bypass the next year CAP quota.

If that was an option, i would leave use in nov 2013, take a break for one year and will then come back in nov 2014 without going though the CAP quota to get a fresh 6 year term.

[raghvi]

Nattybone and raghvi - Thanks for your advice and response.

i am trying to find the alternatives because my employer may not file a GC for me. so the maximum i can stay in US is till nov 2014.

My H1B CAP was filed as consular processing so even if i start working on h1 now, i wont be able to stay beyond nov '14. So i was wondering i have the approved H1 now and if i do not use it at all (not even H1 stamping), i may be able to use it next year without going through CAP quota. I was trying to bypass the next year CAP quota.

If that was an option, i would leave use in nov 2013, take a break for one year and will then come back in nov 2014 without going though the CAP quota to get a fresh 6 year term.

How you plan to start working on H1 without first converting the Consular Process approved petition to COS approved petition? Are you planning to leave US, get H1 stamped and return to move to H1 in Nov 2013?

Even if you delay the trip till Nov 2014, or Nov 2015 or later as long as you use the current h1 approved Cap you will get only 1 Year stay on that H1. The law clearly states that you would be given an option to either use the earlier filed H1 petition and use the remainder time (in your case 6 - 5 years spent on L1) or to get fresh 6 Year if filed as new petition.

The only way to get fresh 6 Years H1 is to apply new H1 AFTER completing 1 Year stay outside US.

Next year cap will also not help you as even if you leave US today your 1 Year clock will end on 01-Oct-2014 and if you apply H1 in Oct-2014 you will get fresh 6 Years, but I doubt cap will remain open till then for next year. In that case the earliest you can apply is in April 2015 with start date of Oct 2015 in order to get fresh 6 Years.

Or

Move to h1 by either converting consular to COS /OR/ going outside and get H1 stamped and returning on H1. Then leave in Nov 2014 and apply again after staying out for 1 Year.

Or

Find another employer who can file your GC before Nov 2013, and start working with that employer, in Nov 2014 based on 365 days PERM pending your employer can request H1 extension by 1 Year. If your I140 is approved by Nov 2014 your employer can even request for 3 Year H1 extension.



This is my opinion not legal advice.

[chilakamarthi]

Nattybone and raghvi - Thanks for your advice and response.

i am trying to find the alternatives because my employer may not file a GC for me. so the maximum i can stay in US is till nov 2014.

My H1B CAP was filed as consular processing so even if i start working on h1 now, i wont be able to stay beyond nov '14. So i was wondering i have the approved H1 now and if i do not use it at all (not even H1 stamping), i may be able to use it next year without going through CAP quota. I was trying to bypass the next year CAP quota.

If that was an option, i would leave use in nov 2013, take a break for one year and will then come back in nov 2014 without going though the CAP quota to get a fresh 6 year term.

Though it is late reply, someone may have similar Q.
You can go to India in October and get Visa stamping processed and enter after 1 year. then you can get 6 years again.

I was on L1 in US till Aug 2009 with Company A (3.10 years). In Apr 2009 I applied for H1 through company B. I got H1 approval on Aug 8. But I moved to India on Aug 15 as my first company asked me to move back (That time I dont have option to use my H1 as it will be active from October.) In Mar 2010, I asked Company A to transfer my H1, they did it and I went for Visa stamping and came to US in Nov 2010. Now I got 6 years as I entered US after 365 days. Hope this helps someone.

Note: If I entered US in Oct 2009 with new H1, it will be valied only for 2.2 years.