Query regarding combined stay on H1 B

[sukace]

My H-1B non-immigrant visa for FY2014 has been approved by the USCIS with validity dates of 10/01/2013 to 11/01/2014. I am not sure why did I get the approval for ONLY 1 year and 1 month, when usually the H1 B petition validity is for 3 years.
I am not sure if this is anyway related to my previous travel.

As per my understanding, the combined time spent in US is reset if you have stayed for 1 year outside of the US.
In my case, I traveled back to India on 15th of August 2012, and with this new visa I will travel back to US on or after 1st of October 2013. In this case, I will have stayed for more than an year outside of US, which will result in resetting the combined time counter for H1. So, I should be able to stay for 6 years (with extension) on this approved H1.
I want to know if an extension will be possible with the currently approved H1 B petition.

[raghvi]

My H-1B non-immigrant visa for FY2014 has been approved by the USCIS with validity dates of 10/01/2013 to 11/01/2014. I am not sure why did I get the approval for ONLY 1 year and 1 month, when usually the H1 B petition validity is for 3 years.
I am not sure if this is anyway related to my previous travel.

As per my understanding, the combined time spent in US is reset if you have stayed for 1 year outside of the US.
In my case, I traveled back to India on 15th of August 2012, and with this new visa I will travel back to US on or after 1st of October 2013. In this case, I will have stayed for more than an year outside of US, which will result in resetting the combined time counter for H1. So, I should be able to stay for 6 years (with extension) on this approved H1.
I want to know if an extension will be possible with the currently approved H1 B petition.

How long have you previously stayed in H1 status?

The combined stay is reset only if you apply under a new H1 cap AFTER completion of one year stay abroad. Since you left US in Aug 2012, had you applied for H1 in Aug 2013 then you would have been eligible for 6 Year H1. You would have applied for H1 in April 2013 before 1 Year completion hence didnt get the benefit, even if you intend to tavel after 01-Oct-2013.

This is my opinion not legal advice.

[sukace]

How long have you previously stayed in H1 status?

The combined stay is reset only if you apply under a new H1 cap AFTER completion of one year stay abroad. Since you left US in Aug 2012, had you applied for H1 in Aug 2013 then you would have been eligible for 6 Year H1. You would have applied for H1 in April 2013 before 1 Year completion hence didnt get the benefit, even if you intend to tavel after 01-Oct-2013.

This is my opinion not legal advice.

Hi Raghvi,
My previous stay was on L1 and not H1. I applied with two employers this year, and strangely one employer has 1 year as the petition validity date, but the other one has 3 years as date. I am not sure what is correct here.

[raghvi]

Hi Raghvi,
My previous stay was on L1 and not H1. I applied with two employers this year, and strangely one employer has 1 year as the petition validity date, but the other one has 3 years as date. I am not sure what is correct here.

L1+H1 can combined be for 6 Years. How long was the stay in L1? Also, it is quite possible that either the employer requested only for a year or was able to provide proof only for a year of work for you. In either case if the 6 years period is not over you can extend H1 till the L1+H1 6 Year slimit is reached. You can extend H1 further also if GC is filed in a timely manner.

This is my opinion not legal advice.

[sukace]

L1+H1 can combined be for 6 Years. How long was the stay in L1? Also, it is quite possible that either the employer requested only for a year or was able to provide proof only for a year of work for you. In either case if the 6 years period is not over you can extend H1 till the L1+H1 6 Year slimit is reached. You can extend H1 further also if GC is filed in a timely manner.

This is my opinion not legal advice.

Hi Raghvi,
I have stayed for 5 years on L1. Strangely, I applied with two employers. One of them has 1 year 1 month as validity and one of them says that he has 3 years validity. I have not yet seen the petition of the second one, but I am not sure what is happening here.
If the application date matters, then it should matter also for the other employer. Right?

[raghvi]

Hi Raghvi,
I have stayed for 5 years on L1. Strangely, I applied with two employers. One of them has 1 year 1 month as validity and one of them says that he has 3 years validity. I have not yet seen the petition of the second one, but I am not sure what is happening here.
If the application date matters, then it should matter also for the other employer. Right?

Every application is handled differently. They sometimes do make mistakes. Prima facie it appears that you will be allowed only 1 year on H1 as you have spent 5 Years in L1 status.

I would advise checking with an independent attorney before trying to stay/extend beyond the 6 Year limit.

This is my opinion not legal advice.

[sukace]

Every application is handled differently. They sometimes do make mistakes. Prima facie it appears that you will be allowed only 1 year on H1 as you have spent 5 Years in L1 status.

I would advise checking with an independent attorney before trying to stay/extend beyond the 6 Year limit.

This is my opinion not legal advice.

Thanks a lot for your responses. I will surely take care.
One question, can something be done (other than H1) in case I want to stay longer in US. Like student visa, or some other visa like this.

[raghvi]

Thanks a lot for your responses. I will surely take care.
One question, can something be done (other than H1) in case I want to stay longer in US. Like student visa, or some other visa like this.

What exactly is the purpose? What do you want to do after 6th year completion? How long do you want to stay after that?

If you dont have a GC , to work full time you need to be on H1 or L1.

Every visa has a different intent and purpose. You can get your employer to start your GC processing if you want to explore option of permanently staying in the US .


This is my opinion not legal advice.

[sukace]

Hi Raghvi,
The purpose is to get the GC, and to settle. I read somewhere that the GC process can be started 365 days before expiration of your visa. With only 365 days in hand, I am not sure whether that is possible or not.

Can this scenario work:-
Scenario 1- I go to US with the current petition of 1 year, and find another employer to file my H1 in FY2015 cap. Can I do that? Will that reset the counter by any chance?
Scenario 2- I go to US with the current petition of 1 year. My wife finds an employer and changes from H4 to H1, and I change from H1 to H4. Can that be done?


What happens if I take the offer of the other employer who has petition approved for 3 years? Will there be any kind of problem with that? Can USCIS come at some point and say that you can not live for 3 years/6 years?
Can there be a problem with my GC filing?

[raghvi]

Hi Raghvi,
The purpose is to get the GC, and to settle. I read somewhere that the GC process can be started 365 days before expiration of your visa. With only 365 days in hand, I am not sure whether that is possible or not.

Can this scenario work:-
Scenario 1- I go to US with the current petition of 1 year, and find another employer to file my H1 in FY2015 cap. Can I do that? Will that reset the counter by any chance?
Scenario 2- I go to US with the current petition of 1 year. My wife finds an employer and changes from H4 to H1, and I change from H1 to H4. Can that be done?


What happens if I take the offer of the other employer who has petition approved for 3 years? Will there be any kind of problem with that? Can USCIS come at some point and say that you can not live for 3 years/6 years?
Can there be a problem with my GC filing?

Scenario 1 - If you are in US for another 1 Year and file H1 again next year your clock would not be reset. Clock would be reset, if you contnue to stay in India, file a new H1 in April 2014 with start date of Oct 2014 thand travel only in Oct 2014.

Scenario 2- Yes you can do that but, as per current laws you cant work while on H4. GC processing for you can continue though. You will have to plan this carefully so as to not exhaust your entire 6 Year H1 tenure, so that when your I140 is approved or PERM filed 365+ days, you will have some time remaining in H1 so as to be able to extend that.

As I said earlier, I believe the 3 Year validity was probably given by mistake not accounting your earlier L1 stay. Not advisable to try to benefit from a USCIS mistake, if indeed it is a mistake. They will eventually find out during your next extension/GC etc and may make you illegal retroactively. Hence the advise to check with an independent immigration attorney regarding the validity and options thereof.

[kabkaba]

Petition validity also depends on how much genuine work/project availability your employer can show. Specifically, the duration of their contract with their clients.

[sukace]

Petition validity also depends on how much genuine work/project availability your employer can show. Specifically, the duration of their contract with their clients.

Hi Kabkaba,
The client letter did not provide any duration, and the relation is also pretty matured. What I see from the petition is, the employer applied for 1 year and 1 month only.

[sukace]

Scenario 1 - If you are in US for another 1 Year and file H1 again next year your clock would not be reset. Clock would be reset, if you contnue to stay in India, file a new H1 in April 2014 with start date of Oct 2014 thand travel only in Oct 2014.

Scenario 2- Yes you can do that but, as per current laws you cant work while on H4. GC processing for you can continue though. You will have to plan this carefully so as to not exhaust your entire 6 Year H1 tenure, so that when your I140 is approved or PERM filed 365+ days, you will have some time remaining in H1 so as to be able to extend that.

As I said earlier, I believe the 3 Year validity was probably given by mistake not accounting your earlier L1 stay. Not advisable to try to benefit from a USCIS mistake, if indeed it is a mistake. They will eventually find out during your next extension/GC etc and may make you illegal retroactively. Hence the advise to check with an independent immigration attorney regarding the validity and options thereof.

I know I have troubled you a lot, and thanks a lot for all your responses and patience. Really helpful. I will try to get hold of an attorney.
I have one last question. If I take option 2, does the total stay time also apply on H4? If yes, I don't think I will benefit from this. Right?
Does changing to student visa help in any case?

[raghvi]

I know I have troubled you a lot, and thanks a lot for all your responses and patience. Really helpful. I will try to get hold of an attorney.
I have one last question. If I take option 2, does the total stay time also apply on H4? If yes, I don't think I will benefit from this. Right?
Does changing to student visa help in any case?

Your H4 stay doesnt get added to the 6 Year. Only time spent on L1 and H1 status counts towards the 6 Year.

But staying on H4 in US for a year doesnt reset your clock also. In order to reset one has to be outside US.

What you would probably need to do is file GC as soon as possible, and before your 6th year stay is completed to move to H4 so that you have time remaining in H1. Once your I140 has ben aproved or your PERM has been pending for more than 1 Year, you can file H4 to H1 COS using the current H1 remaining time and request for 3 Year/1 Year extension (if you exhaust the 6 Year tem you would not be able to do so).

Now, you got to time the same carefully considering that your spouse can move to H1 only from Oct 2014 onwards and at that time you would have completed 6 years stay (if you re enter on H1 in Oct 2013).

Now all this is on the basis of my understanding that your H1 is valid only for 1 Year. Thats why I recommended first talking to an independent lawyer with all the paperwork and determine the options.

This is my opinion not legal advice.