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Claiming Un-used H1 time

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  • Claiming Un-used H1 time

    Hello All,

    I was on H1 for about 2 years and 2 months (26 Months), I had to leave the country for some personal issues.

    I have been out of USA for about 22 months now.

    Can I claim the un-used time from my previously approved H1 or should I have to file for a new one.

    What's the rule regarding claiming un-used time on previously approved H1, I mean is there a time limit like 2 years or 3 years that if I claim I can get un-used time from my previous H1 and after 2 or 3 years IF I don't its all over and I will have to file for a new H1.

    A little back ground: I had contacted 4 lawyers regarding this question ...

    2 said I can get the un-used time from my H1

    the other 2 said I should go for a new one since I have been out of USA for more then 1 year. SINCE I have been out of USA for more then 1 year I fall under the rule where AS IF I had completely used the H1 and as a penalty I have to stay out side USA for 1 year and then I apply for a new one and go through the lottery system. hope I'm making sense

    SO right now I am very confused what's the right answer, being out for 22 months do I apply for a new H1 or claim the un-used time from my previous H1.
    Also please tell whats the rule for being outside USA in order to claim un-used time (Whats the time limit)

  • #2
    Any employer can file a new H1B petition for you using the CAP from your previous petition and request an immediate start date. They will need a copy of your previous H1B approval notice. H1B CAP is valid for 6 years. If you use your old CAP to file a new petition, then you will get only the remaining time in that CAP. For example, if you have already used 2.5 years, then you will get further extensions only for another 3.5 years. The advantage is, you do not have to go through quota and once your petition gets approved, you can begin working immediately.

    Since you stayed outside U.S for 1 year, you are eligible to file a fresh H1B under a brand new CAP (new quota) and get a fresh 6 year period in H1B. The drawback on that is, you cannot file the petition until April 1st 2016 and your petition should get picked up in H1B lottery and upon approval, you can begin working only from Oct 1st 2016. But you will get 6 years.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Thank you for the reply

      To put it in simple terms when you say : [ Since you stayed outside U.S for 1 year, you are eligible to file a fresh H1B under a brand new CAP (new quota) and get a fresh 6 year period in H1B ] ... does that mean applying for a new H1B in the lottery system is my only option

      or

      its a choice if I want to go with/use the old CAP or file a brand new H1B (lottery)

      Originally posted by shervin143 View Post
      Any employer can file a new H1B petition for you using the CAP from your previous petition and request an immediate start date. They will need a copy of your previous H1B approval notice. H1B CAP is valid for 6 years. If you use your old CAP to file a new petition, then you will get only the remaining time in that CAP. For example, if you have already used 2.5 years, then you will get further extensions only for another 3.5 years. The advantage is, you do not have to go through quota and once your petition gets approved, you can begin working immediately.

      Since you stayed outside U.S for 1 year, you are eligible to file a fresh H1B under a brand new CAP (new quota) and get a fresh 6 year period in H1B. The drawback on that is, you cannot file the petition until April 1st 2016 and your petition should get picked up in H1B lottery and upon approval, you can begin working only from Oct 1st 2016. But you will get 6 years.

      Comment


      • #4
        You have a choice.
        1) Use the old petition and file a transfer. The time that you have already spent in U.S in H1B status will taken and you will get only the remaining period.
        2) File a brand new H1B under quota and get a fresh 6 year period.

        Originally posted by johnj7250 View Post
        Thank you for the reply

        To put it in simple terms when you say : [ Since you stayed outside U.S for 1 year, you are eligible to file a fresh H1B under a brand new CAP (new quota) and get a fresh 6 year period in H1B ] ... does that mean applying for a new H1B in the lottery system is my only option

        or

        its a choice if I want to go with/use the old CAP or file a brand new H1B (lottery)
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment

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