H1B Visa with gap

[pratu]

I entred USA in Jan 2004 on H1B. I used 5 years of my H1B already. Then I came back to India in Jan 2009.
Q1: Can I use the remaining 1 Year of my same H1B now i.e. in 2012?
Q2: If I can be USA now for remining 1 year period, how can I stay there after this 1 year? Can I fill new H1B in April 2013 for Oct 2013 quota?

Please reply.

[shervin143]

Q1: Can I use the remaining 1 Year of my same H1B now i.e. in 2012?
>>> If your last H1B petition approval is within the last 6 years, then you can recapture the remaining 1 year in that CAP.

Q2: If I can be USA now for remining 1 year period, how can I stay there after this 1 year? Can I fill new H1B in April 2013 for Oct 2013 quota?
>>> If you use the old CAP to recapture the remaining 1 year, then you cannot file a new H1B petition subjected to CAP in 2013. You have to stay outside U.S for 1 whole year to be eligible for a fresh 6 year period in H1B. If you wait until 2013 April to file a new H1B petition with H1B start date of Oct 1st 2013, then you will get a fresh 6 year period.

[pratu]

H1B with Gap

Thanks for the reply. I have other question.
I have 1 Year 2 Months pending on my H1B. It is getting transfered with new employer.
If I go to USA with remining period, can my employer file gren card for me within a month from joining? Is he allowed to do that?
If the GC is applied for more than 365 days, then can I apply for H1B extension on that bases?

[shervin143]

I have 1 Year 2 Months pending on my H1B. It is getting transfered with new employer.
If I go to USA with remining period, can my employer file gren card for me within a month from joining? Is he allowed to do that?
>>> They can file it any time. But filing PERM within 1 month of you entering U.S is not possible. Read the information in the GreenCard menu of immihelp. Before the PERM can be filed, they have to work on the paperwork, advertisement and once the AD is placed for the job, they have to handle the recruitment and there should be a quite period for almost 60 days before the PERM can be filed. I doubt if the employer will be able to file the PERM 365 days prior to your 6th year end if they wait until you enter U.S. It is possible only if they start the process right away before you enter U.S. Only if everything is ready for filing before you enter U.S, it will be practically possible. They can even file the PERM when you are outside U.S, that way, you will have enough time left to file the 7th year extension.

If the GC is applied for more than 365 days, then can I apply for H1B extension on that bases?
>>> Yes. PERM has to be filed 365 days prior to the end of the 6th year.