H1B petition Extension after Max Out date

USA H1B Visa
1

Hi, I have the below questions related to my scenario and expect your quick response please.

  1. I was in USA on L1B with Company A from Nov 08, 2008 till Sep 27, 2013 (Close to 5 years) and now back in India.
  2. I also got my H1b approved through an external consultant in 2013 and is valid from Oct 1, 2013 till Jan 7, 2015.
  3. I travelled to India on Sep 27th, 2013 and wish to return only after an year, so that I can reset the max out clock of 5 years.
  4. My wife is now working in USA with H1B since Oct 1, 2013 for Company C.

Questions:

  1. Can I come to USA anytime from 1st Oct, 2014 in H1B and continue my stay in such visa for 6 years (as my clock will get reset) by applying H1b extension immediately or within 2 months after I arrive?
  2. Can I come in L1A through my Current company A after an year and get COS from L1A to H1B (with my existing petition that was unused).
  3. Can I come in H4 visa and get COS from H4 to H1B (with my existing petition that was unused).
  4. My current H1b petition is valid till 7th Jan, 2015 only and if I havent arrived USA till then through any visa, can I use this expired/unused H1b petition later to exempt from Cap?
  5. If I start to work with my currently approved H1b in future, Can I stay there continuously for 6 years with that visa. (I got this doubt because, the current H1b was approved within max out time of 6 years, 5yrs in L1b+1year in H1b)

Basically, I want the best possible suggestions for me to use my approved H1b petition in any form rather than wasting it.

Thanks,
HG

2

My understanding is that clock is reset when you go through cap after resetting your clock. This means, applying for H-1 visa after staying outside US for >1 year. As your H-1 was filed prior to staying outside US for >1 year, your clock is not reset.

  1. You can come anytime but you will be able to stay for only 1 year on H-1

  2. You can enter on L-1A and will be eligible to stay for 2 years. If you move to H-1 in b/w, then you will get 6 years minus time spent on L-1B minus time spent on L-1A

  3. Yes, this can be done. You still get only 1 year of H-1

  4. Yes, this can be used in future for cap-exempt petition. But you will get only 1 year of H-1

  5. Refer (1)

3

Thanks Saurabh. I have one more question now. I understand that with current 1, I can stay for an year only. But can I apply new H1 in April 2015 while am working with current H1 from Oct this year? And once I get new H1, can I stay for five or six years from oct 2015?

Thanks.

4

To reset the clock 2 things need to be done -

  1. You need to stay outside US physically for at least 1 year
  2. You need to go through the cap again after doing (1)

So if you remain on current H-1 and then apply for new cap-subject H-1, then your clock is not reset as (1) is not satisfied.

The other option is to have your GC filed immediately so that you can apply for 7th year extension. Your GC should reach certain stage before you can become eligible for 7th year extension.