10 months left for H1 expiry, is it possible to file GC?

[nileshshah]

Hi Friends,

My H1b will expire after 10 months (Jan 2012). So my questions are,

1. Is this possible to file Labor / GC now?
2. What about 365 day rule?
3. What are the options I have, including going back to India for 1 year and coming back?
4. If my employer doesn't start GC process they might send me to India office for 1 year. In that case what is the best time to start process for next H1 etc?

Thanks.

[shervin143]

You have mentioned that your H1B will expire in 10 months. Are you saying that you are completing your 6 years on that H1B CAP? If yes, then unless both your labor and I-140 gets approved within the 6 year year limit, you cannot file the 7th year extension. The labor should have been filed 365 days before the 6 year end to get an extension based on the pending or approved labor.

If not, then you need to be outside U.S for 1 year to file a fresh H1B under a new CAP. There should be a gap of 1 year from your date of exit and the new H1B start date to get a new CAP.

[nileshshah]

Thanks for the response. Yes you are right I meant, I am completing 6 years on H1b.

Is it realistic to hope that if my employer is agree to proceed further, the labor and I-140 will get approved in 10 months? Also let say what if they file and it didnt get approved by the? I mean does it help any way or it is same as not filing and going back for 1 year?

So If I go back in Jan 2012, can I file my H1 in the same year, and if it gets approved, can come back after Jan 2013 in stead of Oct 2012 (because of the 1 year rule)?

If I have to decide, which is the best time I should go back and when exactly I should file H1 to be back ASAP? Because even though its 1 year, I think because of approval time etc sometimes it can go to more than 1.5 years.

[shervin143]

Is it realistic to hope that if my employer is agree to proceed further, the labor and I-140 will get approved in 10 months? Also let say what if they file and it didnt get approved by the? I mean does it help any way or it is same as not filing and going back for 1 year?
>>> If it doesn't get approved, then you have leave and return bacl after an year. If yur labor gets approved fast, then you can file the I-140 in premium which will get you a result within 15 days.

So If I go back in Jan 2012, can I file my H1 in the same year, and if it gets approved, can come back after Jan 2013 in stead of Oct 2012 (because of the 1 year rule)?
>>> There should be a 1 year gap from your date of exit and the date of H1B effective date requested in I-129. You cannot file an h1B petition with a start date of 1 year in future. Hope you get the point.

If I have to decide, which is the best time I should go back and when exactly I should file H1 to be back ASAP? Because even though its 1 year, I think because of approval time etc sometimes it can go to more than 1.5 years.
>>> Read the above answer and calculate the appropriate time.

[shervin143]

One more option is to file the labor now, leave the country 3-4 months prior to the 6 year end. When labor gets approved, your employer can file the I-140 in premium (which will get your the result within 15 days). When I-140 gets approved, you recapture the 3-4 months that is left in your current CAP and re-enter U.S and immediately file the extension based on the I-140 approval.

This way, you dont have to wait until April to file an H1B on a fresh CAP and don't need to wait outside U.S for 1 year. Also, if there is a lottery due to a lot of H1B application on April 2012 (When USCIS starts accepting fresh applications), then you will never know whether your application will be picked up in the lottery or not.

[nileshshah]

Thanks very much for the info. But still I am not 100% clear about one thing, so let me put it in such a way so that you might be able to answer with Yes / No.

- My 6 yrs ends in Jan 2012. So If I leave in Jan 2012, can they file my H1 for 2012 quota (apply by Apr 2012) and request a start date of 1st Feb 2013? and if it gets approved can I come back on 1st Feb 2013 (as by the time I am outside of US for 1 year)?

[shervin143]

No. Start date can be requested only 6 months in advance. In your case, you wouldn't have completed 1 year outside U.S by that time.

[nileshshah]

Oh Ok. Does it mean that I should do the below in my case,

- I can leave leave US 4 months early than my 6 yrs end (In Sep 2011 in stead of Jan 2012), so that fresh H1 can be filled in Apr 2012 and can come back to US from 1 Oct 2012. Is this true?

[shervin143]

Yes.