Left the US on H1B, now Coming back to work for the same Employer

[snoosnoo122]

I worked in the USA with an H1B for 3 years, but due to an emergency abruptly left the USA for 2 years. My H1B expired. Now the same employer wants me to come back. In this case:

1) Will a new H1B be filed? Cap exempt? or will it be a renewal even though my H1 has been expired for about 18 months.

2) Do I have to wait until October 1st to start?

3) The two years that I was not working under H1 and was out of the USA, will they be deducted from the 6 years of H1 time?

PLEASE HELP! THANKS!

[shervin143]

You can either file the H1B using the CAP from your previous H1B approval notice or file it under a new CAP. If you file it under the old CAP, then you will get only the remaining time left in that CAP. 6 years minus whatever time that you have already spend in U.S in H1B + L1 status combined. After completing the 6 years on that CAP, you will have to stay away from U.S for 1 whole year to get a fresh 6 year period on H1B. The only advantage in filing the petition under the old CAP is that you can start working immediately upon the petition getting approved.

On the other hand, since you have already spend 1 year outside U.S, any employer can file a new H1B petition for you under a brand new CAP. The petition can be filed only after April 1st with the H1B effective date of Oct 1st or later. Upon approval, you will get a fresh 6 years to work in U.S.