Is H1-B petition still valid?

[rpa123]

Hi,
Here is my situation. I got my H1-B petition in Aug 2005 in India. I travelled to USA on June 2006. I went back to India in feb 2007. I again came back to USA through H1-B on May 2007 and left back to India on July 2007. I then took a break of about more than a year and came back to USA in Aug 2008 in L1-B. The reason I came back to USA in L1-B is because My H1-B visa was valid till Aug 2008. I couldn't renew it since I was in India. I am here in USA since Aug 2008 through L1-B. I would like to switch my company now. Do I need to go for a new H1-B or is my H1-B petition filed in Aug 2005 still valid? I was told that H1-B petition is valid for 6 years. So, want to know if I switch my job now, will it just be a H1-B renewal?

Period of stay in US below:

H1-B petition approved in Aug 2005

Travel history in H1-B
June 2006 to Feb 2007 --> 9 months
May 2007 to July 2007 --> approx 2 months

H1-B visa expired on Aug 2008.
L1-B petition approved in Aug 2008.

Travel history in L1-B
Aug 2008 to till now in US --> Approx 2 years


Please let me know if my H1-B petition is still valid and can be renewed to switch over to a new company.

[shervin143]

Check the H1B petition validity in the petition. There is an expiry date on the petition. If you are not going to join the same employer, then even if that petition is valid, you cannot use it to work for any other employer.

[rpa123]

Thanks!

I will check the validity date in the petition. I understand that I cannot use it to work for any other employer. But can any other employer renew the petition so that I can work for them?

[shervin143]

If the petition has already expired, then you need to go for a new H1B petition. However, you can use the same CAP (if yu haven't used all 6 years in that H1B).

Since you have already spent 1 year outside U.S, it is advisable to go for a new H1B petition which will give you a fresh term (6 years - whatever you have used in L1B so far).

[rpa123]

Thanks again

I checked the validity date now. It says Valid from Aug 2005 to July 2008. So, the petition is expired.

What is the difference between both the cases you quoted below? In the first case, I will be applying for a new petition to utilize the remaining period left in the CAP starting from Aug 2005. Is this the same as applying for new Petition in the second case, let's say starting Aug 2010? What is the processing time in both the cases? Is it the same?

[shervin143]

If you use the existing CAP, then you will get only the remaining period in that H1B. Say you have already completed 4 years before, you will get only 2 more years minus the time spent on L1B. Then you will have to stay out of the country for 1 year to get a fresh 6 year term.

If you apply in a fresh CAP, then you will get a fresh 6 year term minus whatever time that you have spent as of now in your current L1B. The processing time is the same in both the cases. If applied as a fresh H1B (new CAP), then the start date can be on or after Oct 1st.