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Immigration Issues/Application of H1 6yr limit to H1/L1 mix stay

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QUESTION: Hello Ajay,

Thanks for helping us on these topics. Here is my question:

I worked in US for 5 years (2.5 yrs on H1B and then 2.5 yrs on L1B). Thereafter, I returned back to India and stayed for more than 1 year.

Now, if I wish to re-activate my old H1B which will not be subject to this year's cap, will I get an extension of 3.5 years (= 6-2.5) or 1 year (= 6-5)?

If I get an extension for 1 year, then will I be able to apply for a fresh H1B next April (subject to the cap) and get another 5 years?

Regards,

ANSWER: Hi,

If you wish to be exempt from the visa cap, the H1B petition will be approved only for one year.

You will then have to depart the U.S. for at least one year in order for the 6 year clock to reset. You will be subject to the visa cap as well even after departing the U.S. for one year, as you will have maxed out the original 6 year clock.

If your employer supports you for the green card process on a timely basis, you can extend H1B beyond six years and not have to depart the U.S. and not be subject to the visa cap either. General information about employer sponsorship through PERM (also known as labor certification) is here: http://h1b1.com/laborcert.htm

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

QUESTION: Thanks Ajay,

This is a unfortunate situation as I just noted that this year's cap has been exhausted. So, I guess I do not have any option here.

If my employer supports me for a green card, then I guess it will take at least 2 months to file the PERM and then another 2-3 months for the PERM to get approved. Thereafter, will the I-140 get approved in 7-8 months? In other words do you see it extremely challenging for the entire process to get over within the 1 year that I have left on my H1?

My other question is, once I am on H1 extension, will my status be similar to a regular H1? In fact, I was planning to enroll in a part time study course. Will I be allowed to do that? Also, while on H1 extension will I be able to leave US for a vacation or other short travels?

Regards,

Answer
In our experience, if the advertising for PERM is to start from the beginning, it is closer to 4 to 5 months for PERM to be prepared until it can actually be filed, and then perhaps 3 months for certification of PERM. General information about PERM is here: www.h1b1.com/laborcert.htm

However, the subsequent I-140 immigrant petition can be filed with the USCIS through premium processing, resulting in a decision within 15 days of filing. Based on I-140 approval (or, alternatively, if PERM is filed at least one year ago), you can obtain extensions of H1B status beyond 6 years without any limitations.

H1B status is the same whether it is H1B extension or transfer or concurrent employment, etc.: www.h1b1.com/concurrent.htm

You can study part-time in H1B status, as long as you are also paid at least the agreed upon salary stated in the H1B petition. If you depart the U.S., you will require an unexpired H1B visa stamp to enter the U.S. again. The visa stamp is normally issued at a U.S. Consulate in the applicant's home country.

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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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