Old H1B petition

[Rany_Singh]

Hi,

I have an old H1B petition which was valid from year 2005 till Sept 2007.I was in US on H1 between Feb 2005 -Sept 2006.Then I was in India until July 2008.I again came to US on L1B and have been staying here since then on L1B.Can you please let me know if an employer can use my old H1B petition and it would be counted against cap if I decide to use it in Feb 2012 next year.

the reason I feel it can be used it is because I was out of country for almost 2 years hence my H1 cycle would have got reset and I would have stayed on L1B only for around 4 years till Feb-2012 so I would still have 2 years left on my visa if my H1 gets approved.

[shervin143]

If you use the CAP from the old H1B petition, then the H1B clock will not reset. You should file a new H1B petition under a new CAP to take advantage. You will get 6 years minus whatever time that is already spent in L1 as your H1B duration (if filed against a new CAP). The CAP for 2012 is still open and any employer can file the H1B with a future start date (Feb).

[kabkaba]

IMO your previous 1 year gap cannot be used like this to claim clock reset. You have to spend 1 year outside immediately before H1 petition is filed under new cap. Consult a lawyer.