Cap-exempt H1B is expiring a 6-year period. How to reset and get a new H1?

[jwolfe]

Hi - I have a cap-exempt H1B that is expiring in May 2018. My employment-based EB2 petition failed. I'm looking into alternatives to continue what seems to be regular life now in US. I understand one can apply for a new H1 if he/she goes out of the country for a year. I have some questions around that process:

1. Does one have to stay for a full 6 year period before leaving US to have the clock reset? For example, what if I leave when I still have a couple months/days left?
2. If I find another regular H1-sponsoring for-profit company, win the lottery April 2018, can I switch from a cap-exempt to a regular H1 without leaving the country?
3. How does USCIS keep track of my whereabouts to know I have left the country to reset the clock?

Thank you!

[raghvi]

Hi - I have a cap-exempt H1B that is expiring in May 2018. My employment-based EB2 petition failed. I'm looking into alternatives to continue what seems to be regular life now in US. I understand one can apply for a new H1 if he/she goes out of the country for a year. I have some questions around that process:

1. Does one have to stay for a full 6 year period before leaving US to have the clock reset? For example, what if I leave when I still have a couple months/days left?
2. If I find another regular H1-sponsoring for-profit company, win the lottery April 2018, can I switch from a cap-exempt to a regular H1 without leaving the country?
3. How does USCIS keep track of my whereabouts to know I have left the country to reset the clock?

Thank you!

1. Not necessary, but one has to stay outside for at least a year in order to reset clock.
2. Am confused, are you planning to leave US or not? If so, when? Why would you want to be part of the lottery when you are already cap exempt? Also, do realize that in April 2018 , even if you leave now, you would not be eligible for clock reset.
3. They have various resources for verification and validation and the onus is on you to prove that you were outside the US for at least a year, otherwise USCIS will not reset the clock and grant H1 only for the remainder of time, and might just issue an RFE asking for your stay dates.

This is my opinion not legal advice.

[jwolfe]

1. Not necessary, but one has to stay outside for at least a year in order to reset clock.
2. Am confused, are you planning to leave US or not? If so, when? Why would you want to be part of the lottery when you are already cap exempt? Also, do realize that in April 2018 , even if you leave now, you would not be eligible for clock reset.
3. They have various resources for verification and validation and the onus is on you to prove that you were outside the US for at least a year, otherwise USCIS will not reset the clock and grant H1 only for the remainder of time, and might just issue an RFE asking for your stay dates.

This is my opinion not legal advice.

Raghvi - thanks for your comments. I think what you are telling me is that to get a new H1, exempt or non-exempt, one needs to be outside of the US for a year.

[raghvi]

Raghvi - thanks for your comments. I think what you are telling me is that to get a new H1, exempt or non-exempt, one needs to be outside of the US for a year.

Yes, if one has exhausted 6 Years of H1 stay and GC has not moved to a stage where in H1 can be extended.

This is my opinion not legal advice.