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Tricky Situation - H1B Extn/Renewal after 1 year outside US

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  • Tricky Situation - H1B Extn/Renewal after 1 year outside US

    Hi,

    I need to understand below situation. Please advise.

    1. With the current approved H1B petition, I will be completing 4.5 years of my 6 years quota ( with petition approval notice and stamped visa valid till Dec 2016 )
    2. Suppose, I stay out of USA for one year and plan to return on April 2016 to work in USA, can I still use my existing petition to work for my Current employer?
    If Yes, Do I have to still work for the same Client? or can i work for other client ( upon LCA,etc... ) through same employer?

    3. based on question 2, If it is Yes and If I apply for an extensions/Renewal, would I be eligible for only 1.5 years of extension ? or I will be allowed for 6 years?

    4. If it is 6 years, Will I be Cap exempt ( since I am out of US for more than 1 year and still hold an approved petition ). Or, I need to file a fresh h1b petition in April (going thru lottery)

    5. While being out of USA, can I still use my existing petition to perform H1B transfer to another employer from outside USA ( if i have a job offer from new US employer )


    I140 is not yet filed.


    Please advise.

  • #2
    Originally posted by mail4hemanthr View Post
    Hi,

    I need to understand below situation. Please advise.

    1. With the current approved H1B petition, I will be completing 4.5 years of my 6 years quota ( with petition approval notice and stamped visa valid till Dec 2016 )
    2. Suppose, I stay out of USA for one year and plan to return on April 2016 to work in USA, can I still use my existing petition to work for my Current employer?
    If Yes, Do I have to still work for the same Client? or can i work for other client ( upon LCA,etc... ) through same employer?

    3. based on question 2, If it is Yes and If I apply for an extensions/Renewal, would I be eligible for only 1.5 years of extension ? or I will be allowed for 6 years?

    4. If it is 6 years, Will I be Cap exempt ( since I am out of US for more than 1 year and still hold an approved petition ). Or, I need to file a fresh h1b petition in April (going thru lottery)

    5. While being out of USA, can I still use my existing petition to perform H1B transfer to another employer from outside USA ( if i have a job offer from new US employer )

    I140 is not yet filed.

    Please advise.
    Til when is your H1 visa valid in the passport?
    2. Yes as long as the conditions of approval (LCA, location etc) remain the same.If any other client/location a suitable LCA and H1 amendment needs to be filed.
    3. 1.5 Years. If you want fresh 6 Years you need to file fresh petition.
    4. You will be cap exempt for but as you have already spent 4.5 Years on this petition you can spend only additional 1.5 Years on it. If you want fresh 6 Years you need to file fresh petition.
    5. Yes.

    This is my opinion not legal advice.

    Comment


    • #3
      Originally posted by raghvi View Post
      Til when is your H1 visa valid in the passport?
      2. Yes as long as the conditions of approval (LCA, location etc) remain the same.If any other client/location a suitable LCA and H1 amendment needs to be filed.
      3. 1.5 Years. If you want fresh 6 Years you need to file fresh petition.
      4. You will be cap exempt for but as you have already spent 4.5 Years on this petition you can spend only additional 1.5 Years on it. If you want fresh 6 Years you need to file fresh petition.
      5. Yes.

      This is my opinion not legal advice.


      Thanks! appreciate the response. I have Visa until December 2016 on my passport. A follow-up questions,

      1. If I do H1B transfer and travel after 1 year, can I still travel on my current visa ( stamped under different employer ) or do I need to go for fresh stamping again, though I would have 6+ months of valid visa.

      2. For your answer #3, when you say fresh H1B, is it cap exempt or non-exempt ( to apply in April and possible lottery )? And, If I get fresh H1B, would it be 6years on top of 1.5 years? totaling to 7.5 years?

      3. Suppose, My current employer starts my GC processing and files Labor, Can I travel out of USA for 1 year and can they still continue GC process? Do I need to be in USA continuous while my GC is being processed.

      Please excuse if any of my questions, appear dumb

      Comment


      • #4
        Originally posted by mail4hemanthr View Post
        Thanks! appreciate the response. I have Visa until December 2016 on my passport. A follow-up questions,

        1. If I do H1B transfer and travel after 1 year, can I still travel on my current visa ( stamped under different employer ) or do I need to go for fresh stamping again, though I would have 6+ months of valid visa.

        2. For your answer #3, when you say fresh H1B, is it cap exempt or non-exempt ( to apply in April and possible lottery )? And, If I get fresh H1B, would it be 6years on top of 1.5 years? totaling to 7.5 years?

        3. Suppose, My current employer starts my GC processing and files Labor, Can I travel out of USA for 1 year and can they still continue GC process? Do I need to be in USA continuous while my GC is being processed.

        Please excuse if any of my questions, appear dumb
        Visa, petition, I-94 are three different things.

        1. You need not go for stamping as long as visa is valid and have petition for next employer. Though it is advisable to do so. The biggest disadvantage of not going for stamping is that upon entry to US you would be given I-94 only till visa validity date even if you have approved petition beyond that date.
        2. If you do not apply in fresh cap then you can claim only the remainder 1.5 Years as only that much time is remaining in previous cap. If you do apply in fresh cap, and possible lottery , you can get fresh 3 Years, with a possibility of extension till max 6 Years. Remember USCIS/Consulates do not by default give 1 Year/2 Years/3 Years etc. They mostly go by the proof of employment, petition validity.
        3. Yes they can continue GC while you are outside US. You need to be in US only when the priority date becomes current in order to apply I485. By the way which Category of GC is being applied and whats your country of birth as that will give you a rough estimate of the time frame for GC.

        This is my opinion not legal advice.

        Comment

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