New H1b after completing 6 years on H1b H1-H4-H1

[monkonmission]

Hi Guys

The situation is my 6 Years of H1b was over on May 30 2012.. Since June 1 i am on H4 visa on my Wife's H1b... and i am in US since then..

So my question is ...is it Mandatory to leave the country for 1 year in order to apply a new H1b???? ..
OR can i just apply H1 this year and change my status from H4 to H1b again.. for next 6 years..

Another question : If i am eligible to apply for Fresh H1b this year when can i start my processing ...
H1 Visa application starts from April 1 but my 1 year gap will be over by May 30 2013 ....
So can i apply for a Fresh H1b visa on April 1 2013 and start work after June 1 2013 or i need to wait till June 1 to apply for H1b

Thanks in Advance !!

[raghvi]

Hi Guys

The situation is my 6 Years of H1b was over on May 30 2012.. Since June 1 i am on H4 visa on my Wife's H1b... and i am in US since then..

So my question is ...is it Mandatory to leave the country for 1 year in order to apply a new H1b???? ..
OR can i just apply H1 this year and change my status from H4 to H1b again.. for next 6 years..

Another question : If i am eligible to apply for Fresh H1b this year when can i start my processing ...
H1 Visa application starts from April 1 but my 1 year gap will be over by May 30 2013 ....
So can i apply for a Fresh H1b visa on April 1 2013 and start work after June 1 2013 or i need to wait till June 1 to apply for H1b

Thanks in Advance !!

If you have used up entire 6 Years of physical stay in US and your GC processing is not in a stage where you can get 1 Year/3 Year extension then the only option is to leave US in order to get fresh 6 Years H1. And YES, you have to physically stay out of US for an entire year in order to be able to do that.

Your second question is not relevant as you are not eligible to apply for fresh H1 since you havent stayed out of US for one full year.

This is my opinion not legal advice.

[monkonmission]

This does not sound right as per this document below ..
I did a lot of research and found out as per this Memorandum issued by USCIS in 2006 they have clarified this doubt..


I think i can apply for Fresh H1 again this year.. i don't need to go out for one year..

I just need to find a good lawyer.. Keeping my fingers crossed !!

[raghvi]

If you have used up entire 6 Years of physical stay in H1B status and your GC hasn't yet been filed in timely manner then the only way to get fresh H1B is to stay out of US for one full Year.

The Memo talks about the need and validity for H1 to continue to stay in US in H4 Status even if 6 Years of H1 have been completed. Technically this enables a Husband and wife to stay in US for 12 Years, even without filing green card by husband being in H1 and wife being in H4 for first 6 years and the next 6 years the wife being in H1 and the husband on H4 status.

Also, the memo addresses how to determine the maximum period one can have H1B for someone who has spent less than 6 Years in H1 status in US and been outside US for more than one year.

And the H1 extension beyond 6th year is only for those whom the employer has sponsored Permanent residence.

The memo doesnt anywhere say that a person who has spent 6 Years physically in US in H1 status is eligible for filing fresh H1 under the Cap without the necessity to stay outside the US for 1 Full Year.

I am not a lawyer so my interpretation can be wrong.

I do agree with your opinion that you need a good lawyer to determine the most suitable options for you.

This is my opinion not legal advice.

[monkonmission]

If you have used up entire 6 Years of physical stay in H1B status and your GC hasn't yet been filed in timely manner then the only way to get fresh H1B is to stay out of US for one full Year.

The Memo talks about the need and validity for H1 to continue to stay in US in H4 Status even if 6 Years of H1 have been completed. Technically this enables a Husband and wife to stay in US for 12 Years, even without filing green card by husband being in H1 and wife being in H4 for first 6 years and the next 6 years the wife being in H1 and the husband on H4 status.

Also, the memo addresses how to determine the maximum period one can have H1B for someone who has spent less than 6 Years in H1 status in US and been outside US for more than one year.

And the H1 extension beyond 6th year is only for those whom the employer has sponsored Permanent residence.

The memo doesnt anywhere say that a person who has spent 6 Years physically in US in H1 status is eligible for filing fresh H1 under the Cap without the necessity to stay outside the US for 1 Full Year.

I am not a lawyer so my interpretation can be wrong.

I do agree with your opinion that you need a good lawyer to determine the most suitable options for you.

This is my opinion not legal advice.

Ok i just talked to one of my friends wife.. she was on H1 visa through infosys for 6 years ..
then she applied for COS to H4 just 3-4 months before the expiration of 6 years of H1 visa
and was on H4 for almost 2 years -- never left the country for good - Although they used to go on holiday trips to India ..

and last year again she applied for H1 and she got her approval for fresh H1 for 2 years and 3 months .. and now working on H1 ...
She was never out of the country for 1 full year ...

Now i have an real example in front of me ...

[kabkaba]

You seem to have made up your mind here. Why ask people on a forum when you know everything? Go ahead, find a job and your employer can file the petition.

[monkonmission]

You seem to have made up your mind here. Why ask people on a forum when you know everything? Go ahead, find a job and your employer can file the petition.

NO Sir with all due respect i haven't made up my mind.. And i really appreciate all your expert advice here..

Do you see the point of my confusion .. I have a real example in front of me and online everybody suggested that this is not possible
and i know all of you can't be wrong ... She definitely hasn't applied for any green card.. then in this case the only possibility i see is that the H1b was approved in Error .. so i should not take that chance ...

[kabkaba]

Every case is different. Only the time that you actually spend in the US counts towards the 6 year limit and any remainder period can be captured. Also, if I-140 is filed or labor is pending for 1 year, extensions beyond 6 years can be obtained.

Moreover, USCIS has made it clear that 1 year has to be continuously spent outside the US before a fresh 6 years can be given. But the burden of reporting past H1/L1 stays is on the employee. It is possible that if past stays are not correctly reported to USCIS while filing the petition, USCIS will incorrectly give a longer duration, but if this is discovered later, they can retroactively cancel the approval. It can also affect future petitions.

[pongce80]

I am now in similar situation, please advise.

Hi everyone,

I am now in similar situation as monkonmission had but a bit different.

I used up 6 years of my first H1-B on October 1st, 2012. I changed status to B-2 (tourist) and stayed for another 3 months. I went back to home country in early January 2013 then got married a year after. My wife works in US and we agreed to start new life together in US. I came back to US in early March 2014 by H4 visa. (I actually stayed outside US for just more than a year)

My wife is an assistant professor and, as an original plan with HR, about to get into process of prevailing wage on July 1st and EB-2 in early September 2014 to obtain green card for both of us. She keeps tracking estimate processing time through websites which we could reasonably expect work authorization for me by 1st or 2nd quarter year 2015. Due to uncertainty with new HR team, we are not sure if process will delay. So we have to search for other options because we cannot deal with single-income situation longer than we planned to.

Long story short -- Below are questions regarding my situation;

Question#1...Am I eligible to apply fresh H1-B this year? Because April 1st has already passed, do I still need to be in a process to get a new quota of H1-B?

Question#2...from Question#1, If I don't need to get a new H1-B quota, does it mean I can start applying for a job right now and then start H1-B application once I get a job?

Question#3...from Question#2, Once H1-B application starts, how long does it generally take? Can I work right away or Do I have to wait till the application gets approved?

Please advise. I am really appreciated all (incoming) replies. Thanks in advance.

P.S. This forum is very helpful to us.

[raghvi]

Whats your country of Birth? Whats your spouse's country of Birth? This will help find out the current priority date for EB2.

You cannot work on H4. Though there is plan for EAD for H4 visa holder but only for those whose I140 is approved. So the only way is to get a H1 for yourself or get EAD.

Fresh H1 will start only from next Year , April 2015 and earliest you can move to H1 would be Oct 2015.

As for EAD it depends upon your country of birth and priority date.

This is my opinion not legal advice.

[pongce80]

Thanks raghvi,

We both are from Thailand. I do realize I cannot work while I am on H4 but thanks for reminder.

From what you mentioned, if I have to wait till next April to apply H1-B, I have to choose either to wait for EAD through my wife's application or to get my own H1-B. I shall not do both at the same time in order to avoid initiating any confusions, correct?

One thing I am curious is... during the time from April to October 2015, am I allowed to work?

Thanks very much again.

[raghvi]

Thanks raghvi,

We both are from Thailand. I do realize I cannot work while I am on H4 but thanks for reminder.

From what you mentioned, if I have to wait till next April to apply H1-B, I have to choose either to wait for EAD through my wife's application or to get my own H1-B. I shall not do both at the same time in order to avoid initiating any confusions, correct?

One thing I am curious is... during the time from April to October 2015, am I allowed to work?

Thanks very much again.

EB2 seems to be current for Thailand. So,PERM may still take time but I140 and I485 can be filed concurrently, conservatively speaking you should be able to get your EAD by May/June 2015.

Without that you cannot work.

This is my opinion not legal advice.

[Hela]

Hi raghvi you seem to know a lot about h1bs. What about my situation: I've been in the US on H1B visa from April 2009 to the end March 2012. It was for research job at the university so I assume it was the obtained by cap-exempt. Then I went back to Poland and after 1.5 years I came back on J1 visa (also with the university) that is good for 2.5 more years. However I am considering to change my job and would like to apply for H1B with a private company. Can I apply as a cap exempt since my previous H1B was less than 6 years ago? Does the fact that I am on J1 now matter? - I an not a subject to a 2 year foreign residency req). I will greatly appreciate you opinion, Hela

[serkanokar]

New H1B after filing for I-485

What if the PERM/Labor approved 6 months before reaching H1B 6 year limit and I-485 is filed and person got EAD but no longer has H1B and hasn't had H1B since switching to EAD. I-140 is approved a year ago. I-485 is pending more than 180 days. Now he is changing employer while EAD renewal is pending. Can the new employer apply for a new H1B under these circumstances? What would be the pros and cons?

[H1_h4_h1]

Ok i just talked to one of my friends wife.. she was on H1 visa through infosys for 6 years ..
then she applied for COS to H4 just 3-4 months before the expiration of 6 years of H1 visa
and was on H4 for almost 2 years -- never left the country for good - Although they used to go on holiday trips to India ..

and last year again she applied for H1 and she got her approval for fresh H1 for 2 years and 3 months .. and now working on H1 ...
She was never out of the country for 1 full year ...

Now i have an real example in front of me ...

Hi monkonmission,

I wanted to ask if you were able to get your second h1 without leaving country for a year? I am in a similar situation.