HiB Maxout period

[rajkmohan]

HI,

I got my first H1B new in Jan 2012. I was in USA from April 2012 till Sep 2014 and then I came back to India for a family emergency. Meanwhile I got I140 approved in Aug 2016 as well. My H1 visa also got expired on Dec 31st 2015 itself. Now that I have some series of questions to understand the process.

1) Can I initiate my H1 extention process?
2) If so, will that be under cap excemption process right?
3) How long can I be outside USA to be qualified under the H1 cap excempt process?
4) How does the H1 maxout concept works
5) Can my I140 approval anyway influence my H1 extension process?

Thanks in advance for the replies.

Regards,.
Mohan

[devspace]

HI,

I got my first H1B new in Jan 2012. I was in USA from April 2012 till Sep 2014 and then I came back to India for a family emergency. Meanwhile I got I140 approved in Aug 2016 as well. My H1 visa also got expired on Dec 31st 2015 itself. Now that I have some series of questions to understand the process.

1) Can I initiate my H1 extention process?
2) If so, will that be under cap excemption process right?
3) How long can I be outside USA to be qualified under the H1 cap excempt process?
4) How does the H1 maxout concept works
5) Can my I140 approval anyway influence my H1 extension process?

Thanks in advance for the replies.

Regards,.
Mohan

1) Yes, you can as long as you are with the employer from whom you got the I140 approved
2) Yes, it will be cap exempt. see the below note on how the cap process works which answers your quesiton 3 and 4. you will be falling under the scenario highlighted in bold
5) It will not influence.

I worked on the H1B for a full 6 years: A person in this situation must leave the US and stay abroad for a full year before reapplying for a new H1B. When she does reapply, she will be subject to the cap and eligible for another full six years.

I previously worked on the H1B for under 6 years and have been back in my home country for less than a year: A person in this situation will be exempt from the cap. She may file a new petition at any time during the year, and may do so without first returning to the US. She will only be eligible for the remainder of time left from her original six year period, however. If, for instance, she calculates that she originally spent a total of two years working on the H1B before returning home, she will be eligible for a maximum of four years with her new employer.

I previously worked on the H1B for under 6 years and have been out of the US for more than one year but less than six years: A person in this situation has two options. She can file a cap-exempt petition at any time. If she chooses this option, however, she will only be eligible to receive the remainder of the time left over from the initial period. The second option is to subject herself to the cap, which has the advantage of making her eligible for a fresh six year period.

I previously worked on the H1B for under 6 years and have been out of the US for more than six years: Unfortunately in this situation it is necessary to apply under the April cap. Cap-exempt petitions to reclaim unused time are only valid within 6 years of being “counted against the cap,” which USCIS seems to interpret to mean within 6 years of last being in the US in H1b status. If you have had H1b status in the past and have unused time you would like to try to reclaim, it is in your interest to make every effort to get a cap-exempt petition filed on your behalf within 6 years of the day you left your prior H1b job.

[rajkmohan]

1) Yes, you can as long as you are with the employer from whom you got the I140 approved
2) Yes, it will be cap exempt. see the below note on how the cap process works which answers your quesiton 3 and 4. you will be falling under the scenario highlighted in bold
5) It will not influence.

I worked on the H1B for a full 6 years: A person in this situation must leave the US and stay abroad for a full year before reapplying for a new H1B. When she does reapply, she will be subject to the cap and eligible for another full six years.

I previously worked on the H1B for under 6 years and have been back in my home country for less than a year: A person in this situation will be exempt from the cap. She may file a new petition at any time during the year, and may do so without first returning to the US. She will only be eligible for the remainder of time left from her original six year period, however. If, for instance, she calculates that she originally spent a total of two years working on the H1B before returning home, she will be eligible for a maximum of four years with her new employer.

I previously worked on the H1B for under 6 years and have been out of the US for more than one year but less than six years: A person in this situation has two options. She can file a cap-exempt petition at any time. If she chooses this option, however, she will only be eligible to receive the remainder of the time left over from the initial period. The second option is to subject herself to the cap, which has the advantage of making her eligible for a fresh six year period.

I previously worked on the H1B for under 6 years and have been out of the US for more than six years: Unfortunately in this situation it is necessary to apply under the April cap. Cap-exempt petitions to reclaim unused time are only valid within 6 years of being “counted against the cap,” which USCIS seems to interpret to mean within 6 years of last being in the US in H1b status. If you have had H1b status in the past and have unused time you would like to try to reclaim, it is in your interest to make every effort to get a cap-exempt petition filed on your behalf within 6 years of the day you left your prior H1b job.

Hi,

Thanks a lot for your detailed reply. It really helps. I have got one more question from your first answer on remaining with the same employer.

1) Do I need to be with the same employer to initiate my extension from India?
2) Incase if I change the employer, can my previous employer revoke my I140?

The reason why I ask this question is, currently in my company there are lot of restrictions on onsite travel. So if no options work out then I am planning to switch company and do H1 extension from the new employer. But I want to be safe here to make sure that I get H1 extension as well as retain my approved I140.

Please advice.