H1B Cap Exempt

[mahkan]

Hi -
I had a H1B Petition from Oct 2006 to May 2009. I stayed in US from May 2007 to Nov 2008. Then I went back to India and stayed there from Dec 2008 to March 2010( 15 months) . My H1b got expired in May 2009.


My company applied for a L1B Visa and I am in US on L1B from March 2010 to till date.

I did not utilize my previous stay on H1b to complete 6 years. Can any another employer apply a H1B Extension on my previous expired H1b as a H1B Cap Exemption considering the period of over 1 year stay outside US.

Appreciate your help!

Thanks
Sreekanth

[shervin143]

If you do that then they will combine the previous stay in that H1B + current L1 stay together to calculate the 6 year CAP period and you will have to once again stay out of U.S for a year to get a fresh 6 year term. Instead, if you file the H1B under a new CAP (since you have already spent 1 year outside U.S) on or after April 1st with an H1B effective date of October 1st or later, then you can utilize a fresh 6 year term minus whatever time that you have spent in L1 in the current term.

[need_info]

Thanks for the clarification.

Is there any specific time limit from the Visa expiry date, that an employer should file for the H1-B Cap exempt? To be very specific ... I heard from some X employer who says that if the Visa expiry date crosses more than 12 months, the CAP exempt process is not applicable. Can you please clarify if there is any time limit like that?

Thanks

[shervin143]

Not true. Visa expiry date has nothing to do with CAP.

Thanks for the clarification.

Is there any specific time limit from the Visa expiry date, that an employer should file for the H1-B Cap exempt? To be very specific ... I heard from some X employer who says that if the Visa expiry date crosses more than 12 months, the CAP exempt process is not applicable. Can you please clarify if there is any time limit like that?

Thanks

[mahkan]

H1B cap exempt

Thanks a lot Shervin for the information!

I am currently in US on L1b, If I apply for a extension H1b on previous expired H1b petition, will i get a new I94 with extension. Or should go out of US and get it stamped to get a new I94?

Thank you!

[shervin143]

It depends on how the employer files the petition. If the employer files the petition as a COS from L1 to H1B (You shuld be maintaining yoru current L1 status and should not leave the country when the petition is under process at USCIS), then you will get a new I-94 upon approval and you can start working for the H1B sponsor without leaving the country. If the employer files teh petition for consular process or if the employer files as a COS but USCIS approved it only for consular process (without new I-94), then you should leave the country and re-enter in H1B visa.

Thanks a lot Shervin for the information!

I am currently in US on L1b, If I apply for a extension H1b on previous expired H1b petition, will i get a new I94 with extension. Or should go out of US and get it stamped to get a new I94?

Thank you!

[mahkan]

Cap exempt

Thanks a lot Shervin. It helps!

[mahkan]

It depends on how the employer files the petition. If the employer files the petition as a COS from L1 to H1B (You shuld be maintaining yoru current L1 status and should not leave the country when the petition is under process at USCIS), then you will get a new I-94 upon approval and you can start working for the H1B sponsor without leaving the country. If the employer files teh petition for consular process or if the employer files as a COS but USCIS approved it only for consular process (without new I-94), then you should leave the country and re-enter in H1B visa.

Hello Shervin,

I received my approval for H1B couple of days back with a start date of Feb 1st 2012 along with new I-94. Till that time I am still maintaining my L1b visa till Jan 31st.

If i resign my current company on L1b on Jan 27th 2012. Will I be out of status from Jan 27th to Jan 31st? Is it illegal to be in US? Or can I continue to stay in US after Jan 27th and join the other company on Feb1st 2012.

Also How much time do i have to make a shift to other company on H1b? or should it be the next day after L1b or previous day of H1b start date

Appreciate your help!

Thanks

[shervin143]

Technically you need to maintain your L1 status until your H1B becomes effective. If your quit your L1 employer before the H1B effective date, then you are considered out of status on L1. You need to be employed with the H1B sponsor as of the H1B effective date or you will go out of status on H1B.

Hello Shervin,

I received my approval for H1B couple of days back with a start date of Feb 1st 2012 along with new I-94. Till that time I am still maintaining my L1b visa till Jan 31st.

If i resign my current company on L1b on Jan 27th 2012. Will I be out of status from Jan 27th to Jan 31st? Is it illegal to be in US? Or can I continue to stay in US after Jan 27th and join the other company on Feb1st 2012.

Also How much time do i have to make a shift to other company on H1b? or should it be the next day after L1b or previous day of H1b start date

Appreciate your help!

Thanks

[mahkan]

Cap exempt

Technically you need to maintain your L1 status until your H1B becomes effective. If your quit your L1 employer before the H1B effective date, then you are considered out of status on L1. You need to be employed with the H1B sponsor as of the H1B effective date or you will go out of status on H1B.

So there is no period to switch between L1 and H1B. It should be an immediate day effect for H1b start date, in my case it is feb 1st.

Also if i say jan 27th is my last day for my current employer on L1. It will be illegal /out of status till Feb 1st 2012.

So when you say techincally, Please suggest if there is a problem if I am out of status for those 4-5 days.

Thank you!

[shervin143]

So there is no period to switch between L1 and H1B. It should be an immediate day effect for H1b start date, in my case it is feb 1st.
>>> Yes.

Also if i say jan 27th is my last day for my current employer on L1. It will be illegal /out of status till Feb 1st 2012.
>>> Yes.

So when you say techincally, Please suggest if there is a problem if I am out of status for those 4-5 days.
>>> No one can predict whether that will cause issues or not. It is your responsibility to maintain your immigration status. But a couple of days between L1 and H1B should not be a problem. But of you can avoid that, then I would suggest you to do that and keep your immigration records clean.

[mahkan]

H4 Visa

Thanks a lot for information.

I have few more questions :-)

I received my h1b visa, but post Feb 1st 2012. I will be on H1B from L1B. I missed applying for H4 for my wife.

Should I wait for my H1B documents to apply for H4 visa or can I apply it on my H1B receipt number?

Is there any premium processing option for H4 Visa so that i can get sooner?

Will she be out of status, even If I apply for H4 Visa and get the receipt number?

I heard that it is going to take 3 months to get the H4 visa.

Thanks
Sreekanth

[shervin143]

I received my h1b visa, but post Feb 1st 2012. I will be on H1B from L1B. I missed applying for H4 for my wife.
Should I wait for my H1B documents to apply for H4 visa or can I apply it on my H1B receipt number?
>>> H4 for your wife should be filed before she goes out of status on L2. The best option is to efile immediately and then send the documents. If your H1B is already approved, then you need to attach a copy of your H1B approval notice while sending the documents for H4.

Is there any premium processing option for H4 Visa so that i can get sooner?
>>> There is no premium processingf or H4.

Will she be out of status, even If I apply for H4 Visa and get the receipt number?
>>> If the H4 is not filed prior to her last day on L2 (Your H1B effective date), she will go out of status on L2. When she is out of status a successful COS to H4 is not possible. You should have filed her H4 along with your H1B. It is not too late. eFile her H4 immediately.

I heard that it is going to take 3 months to get the H4 visa.
>>> It will take anywhere between 2-3 months to get a decision on her H4.