H1B filing outside Quota on old receipt

[helponvisaqs]

Greetings, I have been having a question from quite some time and was not able to get a good answer to this question. Can anyone help me on getting an answer to this question
I am currently on L1B visa working in USA. I had a H1B visa in during the year 2004 to 2006 and then H1 extension for 2006 to 2007. During the extension period I was back in my country-India. And could not return in time to keep my H1B visa active. My company then applied for L1B visa and I have stayed on L1B visa since then. I know that the Quota for H1B 2013 is filled up. However, I have an understanding that if I had an old H1B visa (which may not be active currently) which has not completed its 6 years of inactivity, then an extension of H1B can be filed based on my old H1B receipt. Is this correct ? If this is possible, I would like to know by when I should be able to file the H1B visa ?
thank you for your help and answer.

[shervin143]

1) How much did you spend in U.S on the last H1B petition.
2) How much time have you spent in U.S in L1 status?
3) When exactly did the last H1B petition expire?

[helponvisaqs]

1) How much did you spend in U.S on the last H1B petition.
2) How much time have you spent in U.S in L1 status?
3) When exactly did the last H1B petition expire?

Thank you for the questions posted. Here are my responses against the questions

1. How much did you spend in U.S on the last H1B petition
Visa Start date - 27-Aug-04
Visa expiry date - 30-Sep-06
1st US Entry date - 5-Sep-04
1st US exit date - 17-Jun-05
2nd US Entry date - 26-Mar-06
2nd US exit date - 5-Oct-06
So total of 16 months was spent in U.S. on this petition
An extension was filed for this H1B which was approved. Approval valid from 1-Oct-2006 to 14-Oct-2007 on which I did not travel.

2. How much time have you spent in U.S in L1 status?
I have got 2 L1's stamped since 2007 for which details are as below
1st L1 visa start date - 14Feb2008 and end date - 05Feb2011 - in which I stayed a total of 4 + 16 = 20 months
and
2nd L1 visa start date - 22Feb2012 and end date - 07Feb2015 - in which I have stayed so far for 3 months till date.

3. When exactly did the last H1B petition expire?
The extension approval was valid till 14-Oct-2007 (however I did not travel on this)

[shervin143]

Well, you are eligible to file a COS from L1 to H1B. H1B + L1 in total is for 6 years and only the time spend in U.S in L1 + H1B will be counted against the 6 year period. If you file a COS from L1 to H1B, you can keep extending the petition until you reach the 6 year max out period (6 years - time already spent in U.S in H1B status (16 months) - time already spent in U.S in L1 status (23 months) = 33 months). You will be able to utilize the CAP from the old H1B petition within 6 years of its expiry date (within Oct 14th 2007 + 6 years).

[helponvisaqs]

Well, you are eligible to file a COS from L1 to H1B. H1B + L1 in total is for 6 years and only the time spend in U.S in L1 + H1B will be counted against the 6 year period. If you file a COS from L1 to H1B, you can keep extending the petition until you reach the 6 year max out period (6 years - time already spent in U.S in H1B status (16 months) - time already spent in U.S in L1 status (23 months) = 33 months). You will be able to utilize the CAP from the old H1B petition within 6 years of its expiry date (within Oct 14th 2007 + 6 years).

Thank you for your prompt reply on this. This is really helpful. I was trying to find this answer from quite sometime.
I just have one clarification to be made - will the 16 months on my old H1B be counted because I returned back to US only after a period of more than 1 year on L1B visa ?

[shervin143]

If you use the CAP from your old H1B petition, then the time already spent on that CAP will be counted (Plus time spent on L1). If you have stayed out of U.S for 1 whole year and if you file the H1B under a brand new CAP (filing on or after April 1st with Oct 1st as the start date), then you will get a fresh 6 year period.

Thank you for your prompt reply on this. This is really helpful. I was trying to find this answer from quite sometime.
I just have one clarification to be made - will the 16 months on my old H1B be counted because I returned back to US only after a period of more than 1 year on L1B visa ?

[helponvisaqs]

If you use the CAP from your old H1B petition, then the time already spent on that CAP will be counted (Plus time spent on L1). If you have stayed out of U.S for 1 whole year and if you file the H1B under a brand new CAP (filing on or after April 1st with Oct 1st as the start date), then you will get a fresh 6 year period.

Thank you very much for the clarification. This really helps !!!