Returning to US on H1B (from India after 5years stay in US)

[krishnakishorg]

I was in US for 5years on H1B until late 2010, due to family reasons moved to India.
Before I moved I was with a very large and very well known US company and after realizing I might have to go on a long break to India which this large US company won't be able to give, I moved to a consulting company, worked with a client for a duration of 2 months, then had to move back to India.
It's been about 7 months since I came to India, my visa (stamping and also the latest I-797) will expire later this year, I am wondering if I should stay a little longer and apply for a new H1B which gives me a new 6-year cycle (I am of the opinion new H1B makes my life easy in terms of time I have for apply for GC, beside it helps if I am in India for some more time).
Along those lines I have below questions

1. Will 365 days staty outside the country for new petition be considered after 6 years?

2. Should 365 days staty outside the country for new petition be continuous? During my 5 year stay I was outside US for a couple of months, can I count those days too?

3. When is the latest once can enter (legally and practically) US when the visa is close to expiry?

[shervin143]

1. Will 365 days staty outside the country for new petition be considered after 6 years?
>>> Yes, after staying outside for 365 days, you qulaify to file the H1B petition under a new CAP (Don't use the CAP from the previous approval notice) with a Oct 1st start date which will give you a fresh 6 year period in h1B.

2. Should 365 days staty outside the country for new petition be continuous? During my 5 year stay I was outside US for a couple of months, can I count those days too?
>>> It has to be continuous 365 days outside U.S.

3. When is the latest once can enter (legally and practically) US when the visa is close to expiry?
>>> Anytime before the visa and the petition expires. The I-94 will be issued only till the petition/visa expiry date. You will need enough time to file the extension. USCIS advises people to file the extension at least 45 days before their I-94 expiry date. So plan accordingly.

[krishnakishorg]

Returning to US on H1B (from India after 5years stay in US)

Thank you for a quick reply Shervin. One more question (inline).

1. Will 365 days staty outside the country for new petition be considered after 6 years?
>>> Yes, after staying outside for 365 days, you qulaify to file the H1B petition under a new CAP (Don't use the CAP from the previous approval notice) with a Oct 1st start date which will give you a fresh 6 year period in h1B.

Is it only after 6 years? (My visa was of 2005 CAP, won't I qualify for new CAP until 6 years after Oct-2005?) and I stayed only for 5 year on the H1, till end of 2010)

2. Should 365 days staty outside the country for new petition be continuous? During my 5 year stay I was outside US for a couple of months, can I count those days too?
>>> It has to be continuous 365 days outside U.S.

3. When is the latest once can enter (legally and practically) US when the visa is close to expiry?
>>> Anytime before the visa and the petition expires. The I-94 will be issued only till the petition/visa expiry date. You will need enough time to file the extension. USCIS advises people to file the extension at least 45 days before their I-94 expiry date. So plan accordingly.

[shervin143]

You stay out for 365 days, you qualify for a fresh 6 year term.

Thank you for a quick reply Shervin. One more question (inline).