H1B extension question

[farepk]

I am in US on H1B from Company A for 2 1/2 years. I went back to India and joined Company B. I came back to US on January 2011 (Note: they didn't use my old H1B and applied new H1 as part of cap in April, 2010). In August 2013, i joined company C and transferred my H1B to company C. While transferring my visa extension, company C extended visa till January 2015, which is calculated to total 6 six years of H1B period . My question is should n't they consider my six years from January 2011? why did the attorney considered my old H1B 2 1/2 years as i am out of US for more than 1 year and came back to US on new H1B.? Can i get the H1B extension for 2 more years?

[raghvi]

I am in US on H1B from Company A for 2 1/2 years. I went back to India and joined Company B. I came back to US on January 2011 (Note: they didn't use my old H1B and applied new H1 as part of cap in April, 2010). In August 2013, i joined company C and transferred my H1B to company C. While transferring my visa extension, company C extended visa till January 2015, which is calculated to total 6 six years of H1B period . My question is should n't they consider my six years from January 2011? why did the attorney considered my old H1B 2 1/2 years as i am out of US for more than 1 year and came back to US on new H1B.? Can i get the H1B extension for 2 more years?

On what date you left US while working with A and when was B's H1 petition filed? If there was not one Year difference between these two dates then your first H1 stay gets added.

This is my opinion not legal advice.

[farepk]

I left US in June 2009. My H1B petition filed in April 2010 and i came back in January 2011. So as you say, there is less than 1 year gap between the day i left US and new petition filed, my earlier stay would be considered in 6 year period. Thanks for the clarification.

Now this creates more confusion for me.

My new employer C is filing GC for me. He is filing PERM next week, and as this is technically 6th year of my H1B, i should get my PERM and I140 approved before January 2015. Right? But my attorney says that he will file my H1B extension in December, 2014. How can he file an extension without PERM and I140 approvals? Lets say even i get the PERM approval, i doubt if i will get the I140 approval given the short duration. Am i missing something here? Please clarify.Thanks

[farepk]

On what date you left US while working with A and when was B's H1 petition filed? If there was not one Year difference between these two dates then your first H1 stay gets added.

This is my opinion not legal advice.

Raghvi, thanks for your response.

Do we need to considered the date of petition field or approved? because my petition filed in April 2010, but approved on Oct 1st 2010.

[raghvi]

In my opinion its the petition filed date. Technically when one files the petition one is supposed to mention one prior period of stay in US in last 7 Years along with entry/exit records , I-94 copy etc. So if your employer filed the petition in April 2010, there is no way you and he could have given proof to USCIS in April 2010 that you have been outside US for 1 Year, as your outside period completed in June 2010.

Again, I may be wrong in this interpretation, do check with a reputed attorney.

This is my opinion not legal advice.