Need Help on H1 tansfer

I am in a bit of a pickle. I recently got an H1B transfer done and my extension came back with 3 years of validity, which as per me is not correct as I have already used up 5 years of my H1B. My company's lawyer requested for 3 years and that is how I got 3 years extension. I told my lawyer that this seems to be a mistake on USCIS's part and needs to rectified as I am going for H1B stamping. The lawyer is saying that I was out of H1B status and on H4B for 15 months out of which I spent 10 months out of US (physically) so I will get my clock reset. I am super confused how can my H1B clock reset, I have explained it to the lawyer that this cannot be the case and I should get only 1 year extension. The lawyer is saying that my H1B is reset, has the law changed recently or am I missing something?

If I go with this and approval notice(I797) for stamping will there be any issues?

This clearly is a mistake by USCIS. If they treated it as an extension then it should've been remaining time period. If they treated it as a clock reset then they can't issue you an extension. It's a new H1 altogether subject to quota.

But I would say - you can try to stamp it. If there are issues in stamping it's not your problem anyway. You can be honest and tell them everything clearly.

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Originally Posted by desitiger

I am in a bit of a pickle. I recently got an H1B transfer done and my extension came back with 3 years of validity, which as per me is not correct as I have already used up 5 years of my H1B. My company's lawyer requested for 3 years and that is how I got 3 years extension. I told my lawyer that this seems to be a mistake on USCIS's part and needs to rectified as I am going for H1B stamping. The lawyer is saying that I was out of H1B status and on H4B for 15 months out of which I spent 10 months out of US (physically) so I will get my clock reset. I am super confused how can my H1B clock reset, I have explained it to the lawyer that this cannot be the case and I should get only 1 year extension. The lawyer is saying that my H1B is reset, has the law changed recently or am I missing something?

If I go with this and approval notice(I797) for stamping will there be any issues?

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Originally Posted by desitiger

I am in a bit of a pickle. I recently got an H1B transfer done and my extension came back with 3 years of validity, which as per me is not correct as I have already used up 5 years of my H1B. My company's lawyer requested for 3 years and that is how I got 3 years extension. I told my lawyer that this seems to be a mistake on USCIS's part and needs to rectified as I am going for H1B stamping. The lawyer is saying that I was out of H1B status and on H4B for 15 months out of which I spent 10 months out of US (physically) so I will get my clock reset. I am super confused how can my H1B clock reset, I have explained it to the lawyer that this cannot be the case and I should get only 1 year extension. The lawyer is saying that my H1B is reset, has the law changed recently or am I missing something?

If I go with this and approval notice(I797) for stamping will there be any issues?

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Like you, I can not see how your H1B clock can have been reset to 6 years.

That requires 1 year physical presence outside the USA. Although short visits don't interrupt gaining the 1 year requirement, they do not count towards it.

In addition, the new H1B must be granted from the Cap.

I would gather that neither of those requirement were met. You should be able to recapture the time you were in H4 status (15 months) since that does not count towards the 6 year maximum.

The decoupling of H4 and the "Remainder" vs "Reset" options are discussed in this Memo.

If your lawyer isn't listening, I don't know what to suggest.

Thanks guys for the prompt reply. I am in a very weird situation, I am talking to another lawyer to discuss my options.

I am really in a pickle now. I spoke to my company's lawyer and they are quoting this

"any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.”

And saying that is because of this I got 3 years extension.

I am not sure what to do?

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Originally Posted by desitiger

I am really in a pickle now. I spoke to my company's lawyer and they are quoting this

"any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.”

And saying that is because of this I got 3 years extension.

I am not sure what to do?

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desitiger,

I mentioned you would be able to reclaim the time spent in H4 in my first reply.

It still doesn't sound right, because the 1 year physical absence from the USA is a requirement to reset the clock and the new petition must be applied for under the quota.

His statement

"Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.”

might be better phrased

"Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification, or the remaining time left against the maximum permitted, if the beneficiary previously held H1B status, whichever is the lesser amount.”

It would help if you could list

Approvals and time periods of approvals. (H1B & H4)
Time periods in the USA in each status
Time spent physically outside USA.

I'm trying to understand how your 5 years already spent in H1B is calculated and then the time that should not count.

Attachment 446


I hope this helps. H1B transfer was done in June. New approved petition has validity form Jun 2013 to Jun 2016

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Originally Posted by desitiger

Attachment 446


I hope this helps. H1B transfer was done in June. New approved petition has validity form Jun 2013 to Jun 2016

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Unless I am missing anything, I totally agree with your calculations.

I'm not sure where you go from here.

Desitiger,

Are you not an immigrant visa petitioner awaiting for your AOS?

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Originally Posted by Kanmani

Desitiger,

Are you not an immigrant visa petitioner awaiting for your AOS?

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Nope I dont have a PERM or I-140 approved. My wife does but she has never filed for I-485.

As Q and Spec said, this sounds very odd. I think you better get a second opinion from any reputed attorney.

destiger - are you also a GC beneficiary on your spouse's GC application. That could explain how you got 3 years of H1 extension.

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Originally Posted by qesehmk

destiger - are you also a GC beneficiary on your spouse's GC application. That could explain how you got 3 years of H1 extension.

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Q, His spouse's I-140 cannot be used against his H1b extension (beyond 6 years).

Kanmani,

I agree.

AC21 benefits for H1B extension beyond 6 years (whether it be PERM/1-140 pending for at least 365 days, or I-140 approval) only accrue to the primary applicant.

A dependent is not the beneficiary of either a PERM or an I-140 for the primary. Both are strictly for the individual the Employer applied for.

Thanks Spec and Kanmani. Destiger please disregard what I asked.

Kanmani, have I told you before that you rock. You should enroll for law school now, so that by the time you get your GC, you'll be well on your way to becoming one of the finest immigration attorney's out there. I'd send all my contacts your way.

Spec, no disprespect to you, but you, I believe, are already gainfully employed.

"""As Q and Spec said, this sounds very odd. I think you better get a second opinion from any reputed attorney. ""
I agree - your situation sounds complicated and there is no substitute for legal advice from a professional. Sites like this http://www.ilrc.org/info-on-immigrat...naturalization have a lot of information but often it is difficult to know which document to read in order to answer specific queries. I would advise against relying on heresay and go direct to a lawyer.
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