A bit Complicated H1 Situation, that anybody can encounter

[jegannath]

Hi,

I have been on H1 Visa for quite a few years and have faced different problems - but the following is something I am not able to get concrete answers - I am laying out my situation below - any help in the form of answers will greatly help - Thanks

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Situation
My Labor is filed under my Current Employer [X1] – Labor was filed on Sep-04, 2009
– My H1B petition (under X1) expired as of Nov-30, 2009

Questions
- So does it mean that the periodic extension for 1 year, every-year; is possible from Sep-04, 2010?

- If the filed Labor gets approved anytime, then can an H1B extension of 3 years be filed immediately?

Some more information
- There was a possibility to recapture a period of 7 months (due to my earlier travel out of the US country), hence a Visa extension was filed to recapture these 7 months on Nov-30, 2009 (on the date of expiration)

- I have travelled out of the US country on May 1st 2009 - and never have gone back and still staying out of the US (in India - my country)

- The H1B Extension that was filed on Nov 30, 2009 was approved on Jan 20th, 2010 and is Valid till Sep 16th, 2010 [Visa expired on Nov 30, 2009 - and I was all the time out of US]

- My concern is on the period of Dec 01, 2009 – Jan 19, 2010 – when the Visa was expired and the new filed extension wasn’t approved yet

- I am still working on Deputation for them (X1), even though I am outside of the US from May 01, 2009. I am still working as an employee of X1. I am not sure when I will travel back to the US, as my work outside of the US is still not complete yet

Questions:
- Since my work Visa expired (Nov 30, 2009) and the renewal was not approved until Jan 19, 2010, will my employment (from Dec 01, 2009 – Jan 19, 2010) with the current employer (X1) be considered as expired?

- Even-though the Visa expired on Nov 30th, but the extension was filed under the same employer (X1) within the expiry date, will I still be considered as a valid employee for that period (Dec 01, 2009 - Jan 19, 2010) or should I be considered as non-employee? Since I am still working on Deputation for them (X1), even though I am outside of the US from May 01, 2009

- Is it, as far as an H1B Visa Extension is filed on or before the Visa expiry date (nov 30, 2009); the candidate will be able to still work as an employee of the organization, even after the Visa's expiry date?

- If the Visa expired and If should have been considered as a non-employee, what should I have done, according to the defined immigration procedures?


Will greatly appreciate all the help - Thanks

God Bless!

[txh1b]

First of all, you need to understand that "status" applies only when one is inside the US. AFter you leave the US, if your H1b expired, it does not matter. However, if you stayed past the I-94 date and the new petition was approved without a EOS (I-94), whatever period of stay past the I-94 expiration is counted as illegal.

As you are outside the US, I don't see any problems in your case. Once your labor ages out by 365 days, the company can file 1 year extensions and/or recapture the period outside and bring you back to US.

[jegannath]

Thanks - txh1b

I have followed many of your answers in a number of posts - they are very informative and to the point

I hired an external attorney and also confirmed with my corporate attorney - both of them stated the samething as in your answer below

I am relieved

Please keep-up your great service - according to me your practising one form of dharma - god bless