H1b cap exemption - Extension clarification

[varadagopal]

Hi,

I was on H-1 between 2005-2011 with 2 extensions. I had spent about 4 years 3 months during this period and went back to India. After my original H-1 is expired, my employer applied fresh H-1 on cap exempt (out of cap) since i haven't fully utilized my previous H-1. with the new H-1, I am in USA right now and the validity period on new petition and VISA is given to cover the remainder period left from my original H-1. ( about 1 year 9 months). I came here to USA with new H-1 (out of cap) in June 2014. Since I had spent about 3.5 years in India, if I apply for H-1 extension, will I be approved for an extension since I had more than 1 year gap between my H-1B visas or I will not be given an extension since I have come here under out of cap.

Can you please clarify? would be great if anyone with similar experience share their view/experience.

Thanks in advance,
Varada

[raghvi]

Hi,

I was on H-1 between 2005-2011 with 2 extensions. I had spent about 4 years 3 months during this period and went back to India. After my original H-1 is expired, my employer applied fresh H-1 on cap exempt (out of cap) since i haven't fully utilized my previous H-1. with the new H-1, I am in USA right now and the validity period on new petition and VISA is given to cover the remainder period left from my original H-1. ( about 1 year 9 months). I came here to USA with new H-1 (out of cap) in June 2014. Since I had spent about 3.5 years in India, if I apply for H-1 extension, will I be approved for an extension since I had more than 1 year gap between my H-1B visas or I will not be given an extension since I have come here under out of cap.

Can you please clarify? would be great if anyone with similar experience share their view/experience.

Thanks in advance,
Varada

You most probably would not be given an extension. One cap max 6 Years, irrespective of the time spent outside US in between those 6 Years. If you want fresh 6 Years, stay outside for 1 Full Year and then apply in Fresh Cap. You may have still time to get GC going to avoid a fresh cap.

This is my opinion not legal advice.