L1B and Unused H1B

Dear Saurabh,

I am writing this to get your opinion as I do not find exact situation discussed in this forum.

I was with Employer A, USA for full 5 years, using L1-B, including recapture timings.

I exited USA by Jan-2016, after 5 years of L1B term as I cannot physically be present in USA due to 5 year restriction on L1-B visa and moved to India.The same employer A secured H1-B, Receipt date April/2016 which is valid from Oct-2016 – Nov-2017. This is unused and unstamped. And Its been more than one year since I am physically outside USA from the exit date Jan-2016.Question:If I go for stamping with Employer -B now, that is after one year Cooling-off period, using my already approved H1B petition (cap exempt category) - Will I get 3 + 3 year on this H1B or Just one year only as I was in L1B for 5 years?Please note that approved H1B petition was filed during my 6th consecutive year, but I was outside by that time. I have read in some forum that new H1B is eligible for 3 + 3, only when H1B petition is filed after I being one year outside. When this H1B was filed, I did not complete one full year outside USA. I am not sure if this is binding . Thanks for your help.ThanksThanga.

Your clock is not reset. A’s petition was filed within 1 year of leaving US, and so that didn’t reset the clock.

If B’s petition is filed using A’s petition as reference (i.e. cap-exempt), then also the clock is not reset.

You either need to go through the cap again, or enter using B’s petition and immediately start working towards your green card process to get 7th year extension.

Thanks Saurabh. I have I-140 approved by previous employer. Will it be of any help with new employer to extend my stay beyond 6 years?

Yes, if you have a previously approved I-140, you can use it to get 7th year extension. Meanwhile B can start a new GC application so that they can get their own I-140.


One last follow-up question. As premium processing is stopped for now, how long it takes (approximately) to the H1B transfer when a beneficiary is outside USA for fresh stamping?

It could take several months, say 6-8. I expect them to resume PP in next few months.