L1B to H1B with in 1 Year in India, now H1b counter starts or L1B time also included

[sh.singla]

Hi,

Need some advise on below case.

1) I was in US from Apr 2009 to Dec 2013 on L1B from Comp A.
2) Comp B applied my H1B in Apr 2014 (I was in India that time). Got approved petition for H1B for Comp B from 1st Oct 2014 to 1 Dec 2015.
3) H1B was filed by Comp A under cap exempt using the Comp B approved petition in Oct 2015, which got approved for 1 year till Oct 2016.
4) Traveled to US from Comp A in May 2016 with Visa validity till Oct 2016.
5) Comp A will now applying extension till Sep 2017, stating H1B was filed with in 1 year of going to India, and time stayed in India (Over 2 years will not count to reset counter) will not count and Sep 2017 will have total 6 years completion.

Please advise if counter will not reset regardless of staying in India for over 2 years (Dec 2013 till May 2016) or if another extension can be filed for 3 years in Sep 2017.
Also if counter is not reset, what could be other options, if apply another H1B next year in April 2017, will that come for 3 years (in case go thru lottery etc) or any other options where GC may not be possibility.

Please advise.

[raghvi]

Hi,

Need some advise on below case.

1) I was in US from Apr 2009 to Dec 2013 on L1B from Comp A.
2) Comp B applied my H1B in Apr 2014 (I was in India that time). Got approved petition for H1B for Comp B from 1st Oct 2014 to 1 Dec 2015.
3) H1B was filed by Comp A under cap exempt using the Comp B approved petition in Oct 2015, which got approved for 1 year till Oct 2016.
4) Traveled to US from Comp A in May 2016 with Visa validity till Oct 2016.
5) Comp A will now applying extension till Sep 2017, stating H1B was filed with in 1 year of going to India, and time stayed in India (Over 2 years will not count to reset counter) will not count and Sep 2017 will have total 6 years completion.

Please advise if counter will not reset regardless of staying in India for over 2 years (Dec 2013 till May 2016) or if another extension can be filed for 3 years in Sep 2017.
Also if counter is not reset, what could be other options, if apply another H1B next year in April 2017, will that come for 3 years (in case go thru lottery etc) or any other options where GC may not be possibility.

Please advise.

Yes, the counter would not be reset as H1 was applied and approved before one year of non US stay was completed. The way law is intended is that one applies in the cap of the year following the one year outside stay. As you completed your one year outside stay in Dec 2014, you would have reset clock applying I'm April 2015.



This is my opinion not legal advice.

[sh.singla]

H1 Counter question

Thanks Raghvi! Will there be an option of applying new H1B next Year April 2017, in case I get new H1B next year, will I be able to use that or in other words will that be applicable for 6 years starting May 2016 (Came back in May 2016).