Duration of US stay allowed on entering after 2 yrs of Petition validity

[Deepak Singh]

Hi,

My US H1-B petition was filed in Apr'14 and the petition got approved with a validity date from Oct'14 to Aug'17.
Currently, I'm in UK and may not be able to work from US until Aug'16.

My ques is, how long will I be able to allow to stay in US (longest duration), if I travel after Aug'16 & when should I be applying for extension/s?

TIA.
Deepak

[raghvi]

Hi,

My US H1-B petition was filed in Apr'14 and the petition got approved with a validity date from Oct'14 to Aug'17.
Currently, I'm in UK and may not be able to work from US until Aug'16.

My ques is, how long will I be able to allow to stay in US (longest duration), if I travel after Aug'16 & when should I be applying for extension/s?

TIA.
Deepak

Petition validity, visa validity, and I-94(stay validity) are three different things. As they are each given by different immigration bodies, its difficult to tell upfront how long would you be allowed to stay. I-94 is the primary driver for ones validity to stay during that entry. I-94 is normally driven off by a combination of visa, petition, passport validity, and interview at the Port of Entry. If your job offer remains in Aug 2016, then you would most probably get to be allowed to stay till Aug 2017(I-94), but as you are cap counted your employer can potentially seek extension for upto Aug 2022, as on an approved H1 petition one can request for extensions till 6 Years of physical presence are exhausted.

The larger question I believe is that will your current petition sponsor/employer wait till Aug 2016? If not, you got to find a new employer at that time and that employer would have to first file a cap exempt petition and get it approved before you can use it to get a new visa and travel.

This is my opinion not legal advice.

[Deepak Singh]

Applying for out of cap without ever travelling to US

Dear Raghvi,

Thanks for your last revert.

In line with my earlier post, I'm now at a point when I am required to travel to US by Aug/Sep'16, but due to some personal constraints, I may not be able to do so for as long as Sep'19.

Now, given my petition got approved in Oct'14 and currently valid till Aug'17, I wanted to know

1. If it is possible to file an Out of Cap petition from the same/different employer/sponsor when I never travelled to US during the valid tenure of my initially approved petition (Oct'14-Aug'17)?

2. What are the chances of getting the Out of Cap petition rejected given I have not travelled once during my initial valid tenure of my petition accentuated by the healthy probability of a change in employer/sponsor?

3. If an Out of Cap can still be granted, will the 6 year stay provision be still valid or there is any decrease in the duration that one can stay in US via an Out of Cap petition route?

Again, thanks much for your kind guidance.
Deepak