H1B visa status

[sunil80]

I had a H1B for 5 years between 2003 and 2009. I applied for non cap exempt visa this year using previous visa but got the visa and stamped for full 3 years.

I now have couple of questions...

1) When i travel to US this month am i eligible to stay for 3 years or just for 1 year pending from previous travel.

2) If i am eligible for only 1 year, and if i apply for green card immediately can i stay after 1 year as well.

3) If i am eligible for 1 year , is it the mistake of USCIS to approve for 3 years.

Please help me with your thoughts. My employer who filled the h1 this years claims i can stay for 3 years.

[raghvi]

I had a H1B for 5 years between 2003 and 2009. I applied for non cap exempt visa this year using previous visa but got the visa and stamped for full 3 years.

I now have couple of questions...

1) When i travel to US this month am i eligible to stay for 3 years or just for 1 year pending from previous travel.

2) If i am eligible for only 1 year, and if i apply for green card immediately can i stay after 1 year as well.

3) If i am eligible for 1 year , is it the mistake of USCIS to approve for 3 years.

Please help me with your thoughts. My employer who filled the h1 this years claims i can stay for 3 years.

How long were you in US in H1 status between 2003 - 2009?

[sunil80]

I was there for 5 years.

I had a H1B for 5 years between 2003 and 2009. I applied for non cap exempt visa this year using previous visa but got the visa and stamped for full 3 years.

I now have couple of questions...

1) When i travel to US this month am i eligible to stay for 3 years or just for 1 year pending from previous travel.

2) If i am eligible for only 1 year, and if i apply for green card immediately can i stay after 1 year as well.

3) If i am eligible for 1 year , is it the mistake of USCIS to approve for 3 years.

Please help me with your thoughts. My employer who filled the h1 this years claims i can stay for 3 years.

[raghvi]

Assuming it indeed was cap exempt and not a fresh petition then the company HR is wrong and USCIS also erred in approving your visa for 3 Years. I guess this happened because there was a 5 Year gap. Nonetheless, I would not advise staying beyond the 6th Year on this visa even if you get a valid I-94.

As for GC, in order to stay beyond 6th Year on H1 there are two options :

A. The GC has to be filed before 5th Year completion which in your case has already passed.
B. Get I140 approved before 6th Year completion, this is probably your best bet. But considering the time it takes for PERM advisable to get GC filed as soon as you land in US.

This is my opinion not legal advice.

[sunil80]

Thanks Raghav. In the option B below, would it be sufficient if i apply for I140 in premium processinga nd hope to get it approved.

Please let me know.

Assuming it indeed was cap exempt and not a fresh petition then the company HR is wrong and USCIS also erred in approving your visa for 3 Years. I guess this happened because there was a 5 Year gap. Nonetheless, I would not advise staying beyond the 6th Year on this visa even if you get a valid I-94.

As for GC, in order to stay beyond 6th Year on H1 there are two options :

A. The GC has to be filed before 5th Year completion which in your case has already passed.
B. Get I140 approved before 6th Year completion, this is probably your best bet. But considering the time it takes for PERM advisable to get GC filed as soon as you land in US.

This is my opinion not legal advice.