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H1B Extension

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  • H1B Extension

    Hi everybody,

    My spouse has a valid I-129 and I-94 till May, 2012. She is going to return to India from US after spending around 8 months. This was her first I-129 as well

    as first visit to US. She does not have enough time to apply for an extension and get it approved before coming back. Under this situation,

    1. Is it possible to apply for the extension from India?
    2. What happens if she applies for the extension and leave US?
    3. If she doesnot apply for the extension and leaves US, can she apply for a H1B again just after returning? If yes, should that new petition be subjected to the CAP, or exempt from the CAP?
    4. If she applies for the extension now and that application gets rejected because she has left US, how long she needs to wait before applying for H1B again? Would that be a CAP subject or CAP exempt H1B?


  • #2
    Understand the following things.
    Extension petition is just like any other petition, but it is cap-exempt. The other difference is that it has two parts, extension of work authorization and extension of stay. The second part is not mandatory.
    If the beneficiary is in the US at the time of filing, extension of stay can also be requested, if outside it will not be requested.
    If the beneficiary is outside the US at the time of decision, the extension of stay part may get denied. It will not affect the extension of work authorization part, it can still get approved.

    So, her employer can file the petition at any time now. If filed before I-94 expiry, she can stay in the US until there is a decision (or leave if she wants to). If she leaves, she will need a valid Visa and valid petition to return. So if at the time of returning her current petition has expired, she will need the new approval notice and new Visa to return.
    This is my opinion and not legal advice.