Unused Expired H1B

[Debu]

Am presently spending one year out of the US (as I completed my 6 year H1B last Aug-11). I had two H1 petitions in 2000 and 2001, which I never used and they are expired.

My Wife is presently in the US on a H1. Can I go back to the US on a H4 in Aug-12 and use any of the above two petitions to get a new H1B (By H1 transfer or whatever). Basically I am trying to avoid coming in the 2013 H1B quota.

The reason why I am asking is : I asked around and people said I cannot use the same. However I have a friend who works in the US and his case is similar to mine. This is the reply he gave me

Reply from my Friend
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my H1 was issued in 1999 and xxxxx (Company Name) used it in 2008. it was shown as unused and appealed for exemption from cap.

Pl give me your feedback OR guide me to an attorney who can help. Thanks

[kabkaba]

If you have spent 1 year outside the US, you can qualify for fresh 6 years.
If the employer utilizes the cap from a previous petition, you will only get the remainder time from 6 years. If petition is filed under new cap, you will get fresh 6 years.

IMO since your earliest start date of Oct 1 lies 1 year beyond your last date of departure from US, a petition can be filed on Apr 1 for Oct 1 start date. However, I have heard opinions that 1 year outside must be completed on the date of filing as against petition start date. Even if that is true, if the annual cap remains open until Aug, your employer can file in August for an Oct 1 start date. Of course since this is a petition under new cap, the earliest start date is Oct 1.

Whether you travel to US or not does not matter in this regard as long as you spend 1 complete year outside the US before traveling. However, if you travel in H4 status, you will need to change status to H1 before you can begin working. If petition is filed after you travel to US, it can include change of status, otherwise it will have to be done separately.

[Padma1]

I have a similar condition. I was on L1B for company A from jan 2005 to Feb 2010. I left the us and entered back on may 2010 on H 4 visa and stayed until July 2011. Then again i left the us and reentered on h4 in feb 2012 and I currently stay in the us. I had a H1 B from oct 2009 to oct 2011 through company B which I never used. I never stayed outside the us continuously for 1 year. Will my period on h4 be counted as a reset period?
Can I join company c using my unused expired H1B? If I do so, how long will I have on hI? If I apply for a fresh h1 will I have 6 years from oct 2012?

[shervin143]

You are not eligible for H1B. The period of stay in H4 will not reset the clock. You need to spend 1 whole year outside U.S to qualify for a fresh H1B under a new CAP.

I have a similar condition. I was on L1B for company A from jan 2005 to Feb 2010. I left the us and entered back on may 2010 on H 4 visa and stayed until July 2011. Then again i left the us and reentered on h4 in feb 2012 and I currently stay in the us. I had a H1 B from oct 2009 to oct 2011 through company B which I never used. I never stayed outside the us continuously for 1 year. Will my period on h4 be counted as a reset period?
Can I join company c using my unused expired H1B? If I do so, how long will I have on hI? If I apply for a fresh h1 will I have 6 years from oct 2012?

[Padma1]

Thanks for ur response. But I used only 5 years of those 6 years limit( infact to be precise 53 months) . Can you please explain why I wil not be eligible for applying h1 B and use my remaining 1 year?

[kabkaba]

In that case you will only get the remainder time and not fresh 6 years.