H1B Cooling Period Rules - Traveled on F2 while on H1B Cooling Period.

[RageshChennai]

Hello Experts,

I have a query on H1B Cooling Period Calculation method and here is the scenario. I was in US on H1B Visa and the Max Out was May 2021 , but returned in Jan 2021 itself. Later , I traveled back to US on F2 visa in July 2021 and returned to India in Sep 2021. I would like to know how the cooling period is calculated in this scenario ?

Like -

1) Is it calculated from my last H1 Exit ? Or
2) Last H1 Exit Date + Number of days stayed on F2 in US will be the new cooling Period ? Or
3) Cooling period is calculated based on last exit from US regardless of any type of work / business / visitors visa. - ( Like Latest I94 Exit + 365 ) ?

Requesting your valuable feedback and expert opinion. I am currently in India and looking for possible opportunities to initiate a new H1 from India or converting existing F2 to H1 if I travel in February.


Thanks much in advance.

[rkk09]

Hi Member,

Please see my response below.

1) Is it calculated from my last H1 Exit ? Or
Answer: I hope you are seeking for fresh H1B under CAP quota again.. If this is the case, you must have stayed in out of USA for minimum one year. This date will be calculated from the day you left the USA.

2) Last H1 Exit Date + Number of days stayed on F2 in US will be the new cooling Period ? Or
Answer: No.. As I mentioned already, it will be started from the day you are out of country.

3) Cooling period is calculated based on last exit from US regardless of any type of work / business / visitors visa. - ( Like Latest I94 Exit + 365 ) ?
Answer: As per my knowledge, YES.

Requesting your valuable feedback and expert opinion. I am currently in India and looking for possible opportunities to initiate a new H1 from India or converting existing F2 to H1 if I travel in February.
Answer: You can do change of status from F2 to H1B for remaining of unused H1B periods.. I think you have very very less duration on unused H1B. On another hand, if you have I-140 Approval then you can seek 3 years of H1B Approval when you do F2 to H1B change of status petition.
Otherwise, you will need to stay for one year abroad for filing fresh H1B under CAP quota.

All the best.
Thanks.

[RageshChennai]

Dear rkk09,

Thanks for your response. So, to conclude , the H1B clock will reset when I stay outside US for 365 Days from last exit regardless of the visa category . And yes, you are correct , I had only 4 months left in my H1B and converting F2 to H1 and getting H1 and I-140 approved in 4 months is unlikely to happen.

I would like to ask one more question here. My Spouse F1 has been converted into H1 recently and I have the option to travel back on H4 . If I am not wrong , I can work on H4 EAD once her I-140 is approved. But ,even if I travel on H4 , the clock reset rule will still exist and converting H4 to H1 would be impossible if I stay in US and I shall need to stay on H4 EAD as far as I need to work.

Worst case, I need to wait until September 2022 to reach 365 days and then apply for H1 .

Please share your thoughts and any other options.



Thanks much in advance

Ragesh