H1B Visa used for 2.5yrs.. but away from US since 6.5yrs.. will I fall under cap?

[Stranger33]

Hi friends, I am in a situation where I badly need help. I did my masters from US, and my H1B was filed by the US employer in April 2007. It was under the 25,000 masters quota, and I got H1B approved on 9th April 2007. I visited India in Jan 2008 and got the H1B visa stamped. The visa stamp says "Issue Date - 17Jan2008" and "Expiry Date - 30Sep2010". I returned to US in the month of Feb 2008. I was in US till Sept 2009 and then returned to India to take up a job. Since then I have been in India and never re-visited US. Now I am keen to find a job in US and move back. If you consider the date of first H1B petition filed and approved (ignoring the period I was travelling to India), I have only used 2.5yrs of H1B. But I have been outside of US since almost 6.5yrs. My question is that if I find a job in US now, will I fall under the cap? My intention is to use balance of the 6 yrs visa (i.e. 6 - 2.5 = 3.5yrs), and not to go for full 6 year extension. I am hoping that in these 3.5yrs I will be able to convince my new employer to file for Greencard. I am asking this question as I read conflicting posts, where some have mentioned that after 6 years of being away from US, you fall under cap again, and some have mentioned that you don't.

Appreciate your help in this matter, as I am very keen to move back and time is very critical for me. If I fall under cap, I need to find a job and have everything ready before April 1st which will be very tough, and if I don't fall under cap then I can find job at my leisure and employer can file petition as and when things get finalized.

Also, if you suggest that I will again be a part of the H1B cap, then in that case do I fall under the general cap (of 65,000) or the masters cap (of 25,000)?

Thanks for the help.

[raghvi]

Hi friends, I am in a situation where I badly need help. I did my masters from US, and my H1B was filed by the US employer in April 2007. It was under the 25,000 masters quota, and I got H1B approved on 9th April 2007. I visited India in Jan 2008 and got the H1B visa stamped. The visa stamp says "Issue Date - 17Jan2008" and "Expiry Date - 30Sep2010". I returned to US in the month of Feb 2008. I was in US till Sept 2009 and then returned to India to take up a job. Since then I have been in India and never re-visited US. Now I am keen to find a job in US and move back. If you consider the date of first H1B petition filed and approved (ignoring the period I was travelling to India), I have only used 2.5yrs of H1B. But I have been outside of US since almost 6.5yrs. My question is that if I find a job in US now, will I fall under the cap? My intention is to use balance of the 6 yrs visa (i.e. 6 - 2.5 = 3.5yrs), and not to go for full 6 year extension. I am hoping that in these 3.5yrs I will be able to convince my new employer to file for Greencard. I am asking this question as I read conflicting posts, where some have mentioned that after 6 years of being away from US, you fall under cap again, and some have mentioned that you don't.

Appreciate your help in this matter, as I am very keen to move back and time is very critical for me. If I fall under cap, I need to find a job and have everything ready before April 1st which will be very tough, and if I don't fall under cap then I can find job at my leisure and employer can file petition as and when things get finalized.

Also, if you suggest that I will again be a part of the H1B cap, then in that case do I fall under the general cap (of 65,000) or the masters cap (of 25,000)?

Thanks for the help.

I believe you need to be part of fresh cap. As for Master's or general it would depend upon the job requirement, if job required Masters qualification then you can be part of Master's quota.

This is my opinion not legal advice.

[Stranger33]

I believe you need to be part of fresh cap. As for Master's or general it would depend upon the job requirement, if job required Masters qualification then you can be part of Master's quota.

This is my opinion not legal advice.

Hi Raghvi,

Can you please provide link to USCIS page confirming this? I read on USCIS, and it mentioned that if person applies for fresh 6 years, then he/she is part of cap.. but if only applying to use remaining of the 6-years (3.5 years in my case), then he/she doesn't fall part of cap. There was not timeline mentioned which suggested that after being away from US for 6 years, person automatically becomes part of cap regardless of applying for fresh 6-years or remaining unused H1B.

And my H1B visa stamp mentioned "Expiry date as Oct 2010". However I did leave US in Sept 2009 itself. Even if you have some link which says person falls under cap after 6-years of being away, is this 6-years counted from date of leaving country or date of expiry of H1B visa as per stamp?

Thanks for the help.