H1B different situation

[gatanesakharam]

I have Valid H1B Visa till Dec 2012. (I have I-797 till Dec 2012) from Company A.
I was in USA from 2007 till March 2011 on this H1B.

company A had also filed GC Filed under EB2.
There was an audit and after filing audit response, in 2010 PERM got denied and my attorney filed appeal and currently its under review.

I came back to India by quitting that company and joining another startup, but things didn't work as expected and I want to go back to US.

What are my options?

1. Do a new H1B (will I qualify in 2011 quota or 2012 quota?)
2. Try to join back my old company with existing visa quota and keep on getting H1B extensions. But since my appeal is under review, what if it is denied, do I need to come back to India?

I would like to be back to USA sometime in first quarter of 2012. How can I do that?

Also Will I get additional 8 months that I spent outside of USA additionally? so from Nov 11 to Dec 12 + 7 months that I spent outside so that in this time frame I can file fresh GC?

Thanks

[shervin143]

1. Do a new H1B (will I qualify in 2011 quota or 2012 quota?)
>>> You can use the CAP from the previous H1B petition to file a new one. You will only get the remaining period in that CAP (6 years minus whatever time that was already spend in H1B + L1 combined). However, if you have already spend 1 year outside U.S, then you qualify for a fresh 6 year period in H1B if filed under a new CAP. The CAP for 2012 is reaching fast.

2. Try to join back my old company with existing visa quota and keep on getting H1B extensions. But since my appeal is under review, what if it is denied, do I need to come back to India?
>>> Yes, if it gets denied, then you have to leave the country.

I would like to be back to USA sometime in first quarter of 2012. How can I do that?
>>> If yo decide to go back to work for the same employer and if that job is still available, then you can use the existing approval notice with a valid H1B visa and start working, If you decide to workf or a different employer, then a new H1B petition need to be filed by that employer and it should get approved.

Also Will I get additional 8 months that I spent outside of USA additionally?
>>> Yes. Only the time spend in U.S in H1B + L1 status counts against the CAP.

so from Nov 11 to Dec 12 + 7 months that I spent outside so that in this time frame I can file fresh GC?
>>> Possible. The labor need to be filed 365 days prior to the 6 year end to get the 7th year extension (If filed later, both labor and PERM should be approved).