Immigration Issues/H1B reactivation

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Question
QUESTION: Hi,

I got an H1b visa in 2005 and was in us for 1 year on the same. Then I went back and came to US on L1b and my h1 was cancelled without prejudice.  I spent total 4 years in US on both H1 and L1. I am currently on L1. I have a new employer who is ready to give me a job on H1. What are the options? Do we need to file in April under visa cap of the current year. Or it can be filed anytime without cap?  

Thank you

ANSWER: Hi,

It appears that you spent one year continuously outside the U.S. after being in H1B status for one year in 2005. Thus, the six year clock for H1B was reset.

You will now be subject to the H1B visa cap. This means that your employer can file an H1B petition for you no earlier than April 01, 2012 with requested employment start date of Oct. 01, 2012.

---------- FOLLOW-UP ----------

QUESTION: Thanks for the prompt response, very helpful. One more question, will I be subject to cap now  because my h1 was approved more than 6 years back?

Thank you

ANSWER: Yes, you are subject to the H1B visa cap as the H1B was approved more than 6 years ago.

---------- FOLLOW-UP ----------

QUESTION: Hi, A new employer has filed H1b as part of cap with start date as 1st oct 2012. If this gets approved, do I need to have last working day with my current employer as 30th sep 2012 only? Can I have last working day a few days earlier? I do not want to go out of country before working with new employer on 1st Oct.

Answer
Hi,

Assuming that the H1B approval notice issued by the USCIS through Co. B grants you change of status effective Oct. 01, you should join Co. B at the beginning of October. Ideally, you should be on the payroll of Co. A until Sep. 30. However, as a practical matter, it is probably OK to resign from Co. A up to 10 days prior to Oct. 01 and still remain legally in the U.S. and start working for Co. B at the beginning of Oct. without having to depart the U.S.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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