New H1 - Need Help

[shydinesh]

Hi,
I used last US H1 visa for 5 and half years (had been more than 6 years with the vacation time in India, no vacation more than a year). I returned on July 9 2010 while my H1 was supposed to expire completely by Jan 8 2011.
I returned since I wanted to complete my exile period of 1 year and file new
H1 again. I understand that I have to wait until 1 year before applying new h1 to get fresh 6 years term on h1.
But What will happen if I apply for H1 in Apr 2011? My understanding is that I may get visa for atleast 6 months. And I should be able to go to US after October stamping and file an extension there to contune for next 5 and half years. Is my understanding correct?
If this is true,
1. will the approval notice will start from October or the day the approval approved (based on the processing time).
2. will I be able to process the dependent visa for my spouse since there will be very short period left on my H1 considering the approval received in June or July?

[kabkaba]

Your employer can file a fresh petition on Apr 1 for an Oct 1 start date. They need to clearly mention that you will have spent more than 1 year outside the US on Oct 1. If they do that properly, you should be able to get a fresh 6 year term and a petition approved for 3 years as usual. Make sure that understand this and hire experienced attorneys to handle this.

[shydinesh]

In a worst case, would I get 6 months visa atleast? If yes, would it start from Oct 1 or the day approval received or the day it was applied?

Any experience if any one has received a h1 visa valid with fresh h1 term for the case I have? Can you pass more details that I need to inform my employer Or ask the respective attorney?

The information available on the internet shows that I have to wait 1 yr completely before new application, in case I am looking for fresh visa.

[kabkaba]

If you want to file using old cap number, you will get 6 months petition approval. Employer can request immediate start date in this case, no need to wait until Oct 1.

[shydinesh]

I have been told that for the fresh term of H1, I will have to spend 1 year in India (until July 9 2011) and my visa can only be applied then. Otherwise I can get 6 months visa only and it can not be extended any more. I would need to apply the H1 visa again. Which would add more cost.
It would be a great help if you can refer to any specific details that would help me to forward to employer to consider my case for filing on Apr 01, 2011. Otherwise it will be filed after July 9, 2011.

[shervin143]

I think you are getting confused over visa and petition. Visa has no restrictions. They usually approve the visa as per the petition expiration date. But to get a fresh 6 year term (Petition), you will need to spend 1 year outside U.S and apply on a fresh new quota (April 1st) and can start working only from Oct 1st. If you don't have a valid visa at that time, then you need to get it stamped based on your approval notice to travel to U.S (Visa is just an entry document to U.S).

Like mentioned in the earlier replies, if you use the old CAP number, then your employer can request an immediate start date. However, after 6 months, you will endup returning back to your home and wait another 1 year to apply H1B again.

Ask your employer to consult a good immigration attorney if they want to do things the right way.

[shydinesh]

There is no confusion on my side over visa and petition.
I just want to know if I can file for fresh H1 petition on Apr 1 2011 while not completing the 1 yr exile period while applying but would certainly complete it before stamping i.e. Oct 01, 2011.
Most of the information on the internet says that I will have to wait 1 yr before applying for the new petition again. That means I can not apply on Apr1 if I like to get fresh 6 yr H1 term.
But based on the first reply I received it seemed like there is way to do this. I just wanted to get more details around it. The people responsible for filing h1 in my company not aware of this and not ready to take this matter to attorney. They think they are right(and it may possible they are).
So if some one can provide detail information woud be helpful.

[kabkaba]

There is no confusion on my side over visa and petition.
I just want to know if I can file for fresh H1 petition on Apr 1 2011 while not completing the 1 yr exile period while applying but would certainly complete it before stamping i.e. Oct 01, 2011.

Yes, your employer can file such a petition. They need to make it clear and experienced attorneys should be able to handle it.
Most of the information on the internet says that I will have to wait 1 yr before applying for the new petition again. That means I can not apply on Apr1 if I like to get fresh 6 yr H1 term.
But based on the first reply I received it seemed like there is way to do this. I just wanted to get more details around it. The people responsible for filing h1 in my company not aware of this and not ready to take this matter to attorney. They think they are right(and it may possible they are).
So if some one can provide detail information woud be helpful.

It is the start date that matters and not filing date.