H1B - 1 Yr Stay Abroad Condition

[SaibabaAug2010]

If someone had in this situation in the past or knowledge to my question, please respond to this.

I think this is not the right place to post this question, but I also think, since vast majority of the people comes here, the chances of my question answered are high. Please excuse me in this regard.

My wife completed her 6 years on H1b in this February and had to go on H4 because of her employer did not initiate a green card process as promised and also because of personal reasons she cannot look for a different job prior to her 6 years passed on H1b.

Question I have is, if she wants to come back to H1 again, does she need to wait for H1 quota which starts on 1st April-13? Since she was already on H1 in the past, does she NOT fall in H1 Quota anymore? If she does not need to wait for quota, we are planning to file H1 right after her 1 year completes on H4. Please advice.

[Spectator]

If someone had in this situation in the past or knowledge to my question, please respond to this.

I think this is not the right place to post this question, but I also think, since vast majority of the people comes here, the chances of my question answered are high. Please excuse me in this regard.

My wife completed her 6 years on H1b in this February and had to go on H4 because of her employer did not initiate a green card process as promised and also because of personal reasons she cannot look for a different job prior to her 6 years passed on H1b.

Question I have is, if she wants to come back to H1 again, does she need to wait for H1 quota which starts on 1st April-13? Since she was already on H1 in the past, does she NOT fall in H1 Quota anymore? If she does not need to wait for quota, we are planning to file H1 right after her 1 year completes on H4. Please advice.

The maximum time that a person can be in H1B status is six years.

If your wife has already completed 6 years in H1B status, then there are 3 ways she can return to H1B.

a) If she has a PERM that was filed at least 365 days before the new H1B start date then she is exempt from the 6 year limit under AC21 and could get an H1B approval for 1 year. The PERM can be Pending or Approved or in Appeal, but a Denied PERM does not count.

b) If she has an approved I-140 and her PD is not Current, then she is exempt from the 6 year maximum under AC21 she would be eligible for an H1B approval for up to 3 years.

c) If she spends 365 days outside the USA, she would "reset the 6 year clock" and be eligible for a further 6 years in H1B status. Any application would be under the cap and USCIS may not approve a case until the 365 days outside have been served. Brief trips to the USA do not interrupt the 365 days, but the days in the USA do not count towards the 365 days. Since the H1B application will need proof of the 365 days spent outside the USA, my understanding is that a company cannot apply until the 365 days have actually been served. Depending on timing, that might mean waiting until the next cap season, since yearly H1B allocations are generally used quite quickly.

From your post, it doesn't sound as if she meets the conditions of either (a) or (b).

If she has been in H4 status, then she must be in the USA and will not, or cannot, have been outside the USA for the required time to "reset the clock" when the FY2014 H1B season starts in April 2013.

If she has exhausted her 6 year limit, I don't see how she is going to get a new H1B approval based on the information in your post.

I hope I have understood the situation correctly.

[SaibabaAug2010]

Spec, Thank you very much for your detailed response.

I am aware of options a & b.

Her employer never filed PERM before she moved to H4. Hence a & b are ruled out.

When comes to option C, what I know is, in order to qualify for H1 again a) a person needs to stay outside the US for a year. b)though he or she is physically present in US on H4 in the 7th year the clock resets and qualify for H1. My wife is in US on H4.

If you have any link that talks about what you’ve mentioned in option C, please share with me and that would be a great help.

Thank you again.

[Spectator]

Spec, Thank you very much for your detailed response.

I am aware of options a & b.

Her employer never filed PERM before she moved to H4. Hence a & b are ruled out.

When comes to option C, what I know is, in order to qualify for H1 again a) a person needs to stay outside the US for a year. b)though he or she is physically present in US on H4 in the 7th year the clock resets and qualify for H1. My wife is in US on H4.

If you have any link that talks about what you’ve mentioned in option C, please share with me and that would be a great help.

Thank you again.

The regulation applicable CFR 214.2 (h)(13)(i)(B) says:

(13) Admission.

(i) General

(B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad.

....

The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to reside abroad.

....

B (iii) H-1B limitation on admission.


(A) Alien in a specialty occupation or an alien of distinguished merit and ability in the field of fashion modeling. An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

Time spent in H4 status no longer counts towards the 6 year limit (that was changed several years ago and maybe that is what you are referring to), but remaining in H4 status in the USA does not fulfil the requirements. I have never heard of that being the case and would be directly contrary to the regulations above. A physical absence from the USA is required.

[SaibabaAug2010]

Thank you again Spec.

I just goggled and got few of the same story’s what I am facing now. You’re right.

http://www.avvo.com/legal-answers/do...er-676358.html

I am really upset with the fact. I do not know why I’ve not done this search a year / two back. Of course, even if I would have got to know this a year back I had no option.

I missed my date being current by 3.5 months, felt very sad. This is my 2nd PERM. 1st PERM was denied because of HR mistake. Had terrible nights for few months when my 1st labor was denied (PD was 02/09).

Looks like she will end up waiting for another 3 to 4 years to get my PD (08/10) being current so that she will have EAD. Again, we will have tough time in digesting this.

[qesehmk]

Sai - Welcome to forum. Spec already did a terrific job in bringing clarity around option C. I wonder if there is an option where she stays here on H4 and files PERM for a FUTURE job which then enables her to resume her H1 AFTER 1 year since filing of that PERM. See if that is an option you can pursue.

Thank you again Spec.

I just goggled and got few of the same story’s what I am facing now. You’re right.

http://www.avvo.com/legal-answers/do...er-676358.html

I am really upset with the fact. I do not know why I’ve not done this search a year / two back. Of course, even if I would have got to know this a year back I had no option.

I missed my date being current by 3.5 months, felt very sad. This is my 2nd PERM. 1st PERM was denied because of HR mistake. Had terrible nights for few months when my 1st labor was denied (PD was 02/09).

Looks like she will end up waiting for another 3 to 4 years to get my PD (08/10) being current so that she will have EAD. Again, we will have tough time in digesting this.