1 Year Rule for Fresh H or L Visa

[talls22]

I'm posting this in wrong thread, please excuse me as I need some urgent inputs.

I'm I eligible to apply H1B in cap this year? Here are my details.

I have a 140 approved in EB3 with priority date of 02/06/2008. EB2 PD 12/19/29012 went in audit same employer. I completed my 7 years on L1A last year and came back to India in Aug 2013. I will not have complete one year out of country on Apr 1st 2014. However does approved 140 helps me dodge this rule?

[vizcard]

I'm posting this in wrong thread, please excuse me as I need some urgent inputs.

I'm I eligible to apply H1B in cap this year? Here are my details.

I have a 140 approved in EB3 with priority date of 02/06/2008. EB2 PD 12/19/29012 went in audit same employer. I completed my 7 years on L1A last year and came back to India in Aug 2013. I will not have complete one year out of country on Apr 1st 2014. However does approved 140 helps me dodge this rule?

I'm not exactly certain what you are asking and what rule you are trying to dodge. Please clarify and re-post.

[talls22]

I'm not exactly certain what you are asking and what rule you are trying to dodge. Please clarify and re-post.

Sorry if I was not clear. Let me give one more shot.

I came back to India in Aug 2013 after spending 7 continuous years in USA first on L1B and then L1A. This year I want to apply H1 (Apr 2014). As I'm not out of country for one year on Apr 1st can I apply for H1 based on my approved 140 from 2008?

[Kanmani]

Sorry if I was not clear. Let me give one more shot.

I came back to India in Aug 2013 after spending 7 continuous years in USA first on L1B and then L1A. This year I want to apply H1 (Apr 2014). As I'm not out of country for one year on Apr 1st can I apply for H1 based on my approved 140 from 2008?

No. You cannot be counted against this year H1 cap, since you have not completed 1 year on 1st of April 2014. You may have to complete 1 year staying outside until this Aug'14 and apply next year.

AC21 provisions is for extending H1b, not for cap regulated new H1bs.

[seattlet]

No. You cannot be counted against this year H1 cap, since you have not completed 1 year on 1st of April 2014. You may have to complete 1 year staying outside until this Aug'14 and apply next year.

AC21 provisions is for extending H1b, not for cap regulated new H1bs.


Since the new H1 b only starts in October, and you can apply 6 months prior to it , I think he / she can apply in Apr 2014 and start work in oct 2014.
he / she may not be able to get a h1 with validity prior to Aug 2014 but new h1s anyways will start only from oct 2014.

Im not sure about it, but this is just my guess.

[Kanmani]

Since the new H1 b only starts in October, and you can apply 6 months prior to it , I think he / she can apply in Apr 2014 and start work in oct 2014.
he / she may not be able to get a h1 with validity prior to Aug 2014 but new h1s anyways will start only from oct 2014.

Im not sure about it, but this is just my guess.

Seattlet,

After reading your post, I have second thoughts too. But I have seen a real time experience with one of our friend who had perm denied and spent almost 2 years outside usa to get into new cap .

Let me see what Viz, Q and other gurus have in their mind. I'll try to resolve this tomorrow.

[qesehmk]

Kanmani

I think I had earlier responded to this but then I deleted this because I felt I may be wrong. So here are my thoughts again anyway.

Since the user has not used H1 at all (he used L visa) I think there is no requirement of 1 year wait outside. What do you think?



Seattlet,

After reading your post, I have second thoughts too. But I have seen a real time experience with one of our friend who had perm denied and spent almost 2 years outside usa to get into new cap .

Let me see what Viz, Q and other gurus have in their mind. I'll try to resolve this tomorrow.

[vizcard]

No. You cannot be counted against this year H1 cap, since you have not completed 1 year on 1st of April 2014. You may have to complete 1 year staying outside until this Aug'14 and apply next year.

AC21 provisions is for extending H1b, not for cap regulated new H1bs.


Since the new H1 b only starts in October, and you can apply 6 months prior to it , I think he / she can apply in Apr 2014 and start work in oct 2014.
he / she may not be able to get a h1 with validity prior to Aug 2014 but new h1s anyways will start only from oct 2014.

Im not sure about it, but this is just my guess.


Seattlet,

After reading your post, I have second thoughts too. But I have seen a real time experience with one of our friend who had perm denied and spent almost 2 years outside usa to get into new cap .

Let me see what Viz, Q and other gurus have in their mind. I'll try to resolve this tomorrow.


Kanmani

I think I had earlier responded to this but then I deleted this because I felt I may be wrong. So here are my thoughts again anyway.

Since the user has not used H1 at all (he used L visa) I think there is no requirement of 1 year wait outside. What do you think?

I think Q is right. There is no need for the 1 yr wait. But the OP will need to apply for H1 in Oct (or whenever the window opens).

[talls22]

Kanmani

I think I had earlier responded to this but then I deleted this because I felt I may be wrong. So here are my thoughts again anyway.

Since the user has not used H1 at all (he used L visa) I think there is no requirement of 1 year wait outside. What do you think?

Thanks Q! These words gave me lot of comfort. Shall I ask this question to a immigration lawyer on www.lawbench.com or is there any other online law/attorney reasonable service?

[qesehmk]

Thanks Q! These words gave me lot of comfort. Shall I ask this question to a immigration lawyer on www.lawbench.com (http://www.lawbench.com) or is there any other online law/attorney reasonable service?
You are welcome!

I have never used any services so can't recommend one or other. But why can't your H1 sponsor's lawyer answer this?

Now that viz supported my theory - I feel quite confident of my answer. Perhaps Kanmani can seal the deal ;)

[Kanmani]

Kanmani

I think I had earlier responded to this but then I deleted this because I felt I may be wrong. So here are my thoughts again anyway.

Since the user has not used H1 at all (he used L visa) I think there is no requirement of 1 year wait outside. What do you think?

Q, he has utilized the overall limit of 7 years of L1 which calls for 1 year rule for fresh cycle just like H1. Even this 1 year rule applies to the combination of L1 + H1 which sets the upper limit per cycle.

My doubt is, whether he has to complete 365 days on the day of filing new application or on the day of H1b start date?

[qesehmk]

Q, he has utilized the overall limit of 7 years of L1 which calls for 1 year rule for fresh cycle just like H1. Even this 1 year rule applies to the combination of L1 + H1 which sets the upper limit per cycle.

My doubt is, whether he has to complete 365 days on the day of filing new application or on the day of H1b start date?
Kanmani is there an official documentation? I couldn't find it. Whatever I found talks about H1 to H1 and L to L 1 year condition.

[Kanmani]

Kanmani is there an official documentation? I couldn't find it. Whatever I found talks about H1 to H1 and L to L 1 year condition.

Q,

8'C.F.R.''214.2(1)(12) prohibits an alien who has spent seven years in a managerial or executive capacity (L1A) or five years in a specialized knowledge capacity (L1B) may not seek an extension or change of status, or be readmitted to the United States in either H or L status, unless the alien has resided and been physically present outside the United States.

Michael Aytes memo clarifies L1 to H1 is not allowed when the beneficiary fully utilized the 5/7 year limit.
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf

[qesehmk]

Terrific Kanmani. That looks like a slam dunk on this topic!


Q,

8'C.F.R.''214.2(1)(12) prohibits an alien who has spent seven years in a managerial or executive capacity (L1A) or five years in a specialized knowledge capacity (L1B) may not seek an extension or change of status, or be readmitted to the United States in either H or L status, unless the alien has resided and been physically present outside the United States.

Michael Aytes memo clarifies L1 to H1 is not allowed when the beneficiary fully utilized the 5/7 year limit.
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf