H1 used only for 3yrs but been away from US for 3yrs

[Stranger33]

Hi friends and helpers

I was on H1B visa from April 2007 to Sept 2009 and returned to India in Oct 2009 and have been in India since then. My employer revoked my H1B soon after I left the country. Now I wish to take up a job again in US and want to know that my new employer needs to just file for a reinstatement of my old H1B or I will have to go through the H1 process all over again i.e. file in April, and be a part of the quota?

Will really appreciate your help here as I tried searching help on this topic a lot but couldn't find an answer. Thanks very much in advance.


Regards
Karan

[kabkaba]

NEw employer can file cap-exempt petition. You will get the remainder of the 6 years that way.

[Stranger33]

Thanks a ton for the reply kabkaba. So does this mean that when old employer cancels the H1B visa, there is only a pause put to the existing H1B visa and not a permanent cancellation?

And is there any cap on the maximum number of years a person can be out of US and still retain the old H1B?

Thanks again for all your help. Your reply gave me a tremendous hope.

[Stranger33]

Pls help!! This is critical to me getting a job in US.

[raghvi]

Pls help!! This is critical to me getting a job in US.

All approved petitions within the last 6 years are cap-exempt according to the USCIS. You will get 6 years minus time already spent in the US in H1 and an immediate start date can be requested.

Since you have stayed over 1 Year outside US, you are also eligible for a fresh 6 Year H1 but for that you would have to apply in the open cap. The next cap will open April 2013 with a start date of 01-Oct-2013 or later.

This is my opinion not legal advice.

[Stranger33]

All approved petitions within the last 6 years are cap-exempt according to the USCIS. You will get 6 years minus time already spent in the US in H1 and an immediate start date can be requested.

Since you have stayed over 1 Year outside US, you are also eligible for a fresh 6 Year H1 but for that you would have to apply in the open cap. The next cap will open April 2013 with a start date of 01-Oct-2013 or later.

This is my opinion not legal advice.

Dear Senior Member,

Thanks for the reply. So does this mean:

a) Since my H1B original petition was filed in April 2007 (and I worked in US till Sept 2009), I have not exceeded the 6 years from the date of application (i.e. Today minus April 2007 = 5yrs 7months) and so if I get a job in US till April 2013, the employer needs to just file for a transfer of H1B visa (cap-exempt) and not a new petition all together?

b) If my understanding in (a) is true, then once the new employer files for a transfer petition, do I get 3years 7months (i.e. April 2013 minus Sept 2009) to work under that employer before he needs to file another petition for extension, or I can only work for the remaining months till April 2013 post which a new petition will be required?


Thanks for all your help and good work.


Regards
Karan

[raghvi]

Dear Senior Member,

Thanks for the reply. So does this mean:

a) Since my H1B original petition was filed in April 2007 (and I worked in US till Sept 2009), I have not exceeded the 6 years from the date of application (i.e. Today minus April 2007 = 5yrs 7months) and so if I get a job in US till April 2013, the employer needs to just file for a transfer of H1B visa (cap-exempt) and not a new petition all together?

b) If my understanding in (a) is true, then once the new employer files for a transfer petition, do I get 3years 7months (i.e. April 2013 minus Sept 2009) to work under that employer before he needs to file another petition for extension, or I can only work for the remaining months till April 2013 post which a new petition will be required?


Thanks for all your help and good work.


Regards
Karan

a. Yes. I wouldnt wait till April 2013 to get a job, there would be time taken for the paperwork by the attorneys to get ready and for it to reach USCIS. Ensure that your H1 transfer application reaches USCIS much beofre April 2013.
b. Yes you are eligible for 6 Years minus time already spent. But again it depends on the company employing you being able to demonstrate they have work for you for the 3 Years. Typically H1s are granted for 3 Years so you might initially get for 3 years and would have to apply for recapture later on.

This is my opinion not legal advice.

[kabkaba]

All your previous employer can do is withdraw their petition. Since you have been counted under H1 annual cap already, you will not be subject to it for 6 more years after the previous petition expired. A cap-exempt petition can be filed at any time and immediate start date can be requested (unlike filing in April, starting in October).

[Stranger33]

All your previous employer can do is withdraw their petition. Since you have been counted under H1 annual cap already, you will not be subject to it for 6 more years after the previous petition expired. A cap-exempt petition can be filed at any time and immediate start date can be requested (unlike filing in April, starting in October).

My previous employer did cancel my H1 visa in November 2009 once I had left the country in Sept 2009. So do you mean that I get 6 years after petition cancellation (ie till Nov 2015) to be cap exempt?

[Stranger33]

My previous employer did cancel my H1 visa in November 2009 once I had left the country in Sept 2009. So do you mean that I get 6 years after petition cancellation (ie till Nov 2015) to be cap exempt?

Awaiting a revert from Senior members and other helpers.

[kabkaba]

6 years from petition expiration.

[Stranger33]

6 years from petition expiration.

So that means in my case, it will be till till Nov 2015.. right? Since my last employer cancelled my H1B visa only in Nov 2009.

Thanks for all your help.

[Stranger33]

Dear senior member(s),

Eagerly awaiting a response.


Regards
Karan

[Stranger33]

Dear Kabkaba, appreciate if you can revert to my last post, as that will clear most of my doubts. Thanks a ton in advance.

[Stranger33]

Fear Senior members, pls respond. Thanks.