H1B Visa extn approved but yrs of stay outside US not considered

Dear Saurabh,

I got my H1 approved in 2006 and got into the US on Dec 2006. I stayed for close to 3 yrs before returning to India on Oct 2010 for an extended stay of year and half. I returned on March 2012 and I filed for extension on July 2012 as stamped visa was about to expire on Aug 2012. My employer received the approval notice (I797A) on 10-Jan-2013 which shows that the extention was approved from Aug-2012 to Dec-2012. Apparently my Employer's visa cell had made a mistake and disaccounted the evidence of my stay outside US during the validity of my current H1 while filing for extention. I am currently in US and got to know about this yesterday.

I need to know if "motion to reopen" is an option in this case and can we initiate it now and provide evidence of my stay outside shores of US to USCIS? Or is there any other option/petition  we could file to continue my stay? Do I need to go back till the time its all sorted out?

Thanks for your time, appreciate your quick response. Pls guide me on the same as I donot know what to do now.



Has your I-94 already expired? If yes, then you should leave US now.

The error was commited by your employer and not USCIS and I don’t think filing MTR will correct your status.

If your I-94 has expired, then you should leave US and your employer can file for H-1 extension meanwhile. Once approved, you can appear for stamping and then return to US.

Dear Saurabh,

Thanks for your quick response.
Yes, in my case the I94 and also validity on H1 extn have expired.
This is an exceptional case where the extn approval notice arrived (Jan-2013) after its validity expiry (Dec-2012).
My question to you is :
>> Do I need to apply for a new H1b and come to US only after Oct 2013 or I can recapture the years spent outside USA on my current H1 and apply for an extn on premimum processing?
Thanks for your time, appreciate your response.


You can apply for H-1 extension i.e. submit copy of old approval notice showing that you have already been counted in the cap, and then ask for a longer duration petition. Your employer can request for a time such that it maxes out the 6 year H-1 term inside US.

However, you should leave US as your I-94 has expired and this can continue to happen while you are in your home country. Once approved, you will have to appear for visa stamping and then travel to US. You don’t need to wait for Oct 2013 for this.