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Definition of H1B 6 years max. stay?

Discussion in 'H-1 6 Years Expiring' started by porsen, Sep 4, 2006.

  1. porsen

    porsen New Member

    Hi, this is my first post on the forum. Did a search but didn't find anyone in a similar situation so here it goes. Any insight would be appreciated (and sorry for the long post).

    In 2000 I was offered an inter-company transfer and had my first visa (an L1-B) issued on Dec 7, 2000. I entered the US the day after and began my work history.
    In 2001 my employer was financially troubled and the risk of major layoffs was eminent. For that reason they offered to transfer me to an H1-B as this type of visa would be transferable to another employer in case of a layoff. I accepted, and in Nov 9, 2001 I had my first H1-B issued.
    I was never laid off though and in 2004 my employer was acquired and the new employer's immigration lawyer made a new H1-B petition in the name of the new employer. The lawyer asked me to compile an itemized list of stays and duration outside the US since the issuance of my L1-B visa which amounted to about 27 weeks. The lawyer submitted the petition with an expiration date of May 27, 2007. This was approved and I had the visa issued April 21, 2005. When I saw the expiration date issued on my visa I noticed that it was beyond the 6 year limit but didn't consider it cause for concern.
    My employer has now changed lawyers and the new lawyer has reviewed my case and have stated that this expiration date must be due to a "clerical" error and that I will need to return back to my native country no later than Dec 7, 2006. The new lawyer has not been able to reach to previous lawyer to ask if the expiration date in the petition was a typo or it was intentionally entered due to the 27 weeks outside the US.

    No LC has been filed, as my intention has been to return to my native country at the time of the expiration date May 27, 2007. Logistically it would cause big issues (newborn baby etc.) if we (spouse and 3 US born children) had to return before Dec 7, 2006 and my questions are these:

    #1. The 6 year combined limitation on L1 and H1, is that based on presence in the US, i.e. would my 27 weeks outside the US extend the 6 year limit or is it a hard stop based on exactly 6 years from date of first visa issuance.

    #2. Since the previous lawyer specified the (extended) expiration date in the petition and it was approved can it still be considered a "clerical" error, i.e. it's not because USCIS by mistake issued the visa with an arbitrary incorrect date?

    Much appreciated thx!
  2. great guru

    great guru Volunteer Moderator

    Your 6 years cap L/H counts actual days you are physically lived in US. If you stayed outside US considerable time duirng your L / H visa status, the time will be recaptured with an attorney.

    Even USCIS give extention over 6 years by mistake, it is our responsibilty to get amended, but , if you have LC pending that overrides your case.

    However , seek advise from little flexible and more knowledgeble attorney 's second opinion.

    However if you are planning to go back to your home country for ever, you can stay until the day permitted in your I 94, then leave.

  3. porsen

    porsen New Member

    Much appreciated, thx.
  4. go2ru

    go2ru Registered Users (C)

    With the right attorney you can recover every day. It requires a thorough and knowledgable attorney, and good evidence you were not in the US for the times you claim.

    Departure day from the US and arrival day count as days IN the US, not AWAY from the US.

    Good Luck! :)

    [Edited for typos!]
    Last edited by a moderator: Sep 7, 2006
  5. raoshri

    raoshri New Member

    H1B Expiring 6 Years


    Does a stay on B1 visa count towards the 6 year calculation?

    On my first H1 I came in Sep 1999 and went back in Feb 2000.Then I came on a B1 visa in Aug 2000 and stayed till Feb 2001.

    I came back on a new H1 in Mar 2001.Since Mar 2001, I have been to India (away from US) for a month and a half.

    My current I-94 expires in Feb 2007.

    Could somebody let me know if the intermediate B1 period count towards the 6 year calculation?

    Appreciate anybody's inputs.

  6. go2ru

    go2ru Registered Users (C)

    It should not count, as you were not in H-Status at the time.

    That said, it is at the disgression of the officer handling the application what they give you and what they don't.

    I suppose you did not work on your B1? As your B and your H visas are in the same years, you should get all tax-paperwork together and if you have, any paystubs from that time. That may be difficult, but the IRS might actually help you. And you need a good lawyer.

    Some may say this is over the top, but rather safe than sorry.

    Good luck! :)
  7. raoshri

    raoshri New Member

    Calculation of 6 year

    Thanks for the prompt reply.

    In my B visa, I was here on business purposes and not working and hence did not get any paystubs

    Can you tell me when does the 6 year calculation start from?

    Does it start from Sep 1999 or does it start from Mar 2001?

    Thanks a lot again.
  8. go2ru

    go2ru Registered Users (C)

    It was 6 years originally. Period.
    Then they allowed 'meaningful absences' to be recaptured.

    Today, with the right lawyer and evidence, it can be 6 years at 365 days = 2190 days. Again, with the right lawyer.

    Good luck! :)
  9. raoshri

    raoshri New Member

    Start date of H1

    Sorry for not getting across.

    My question was : from when does the 6-year clock start?

    Is it from my first H1, or my second H1?

    As I told, the difference between when I left for India on my first H1 was Feb 2000, and then I came back on my next H1 in Mar 2001 (there was more than an year difference when I was not on H1).In between I was on B1 visa.

    This is important for me to determine when exactly 6 year period ends.
  10. GotPR?

    GotPR? Registered Users (C)

    from the 1st day with H1, count every single day that you were in the US on H1 status. It must be less than 6 years.
  11. raoshri

    raoshri New Member

    Start Date

    Is it the 1st day of First H1 or Second H1?
  12. GotPR?

    GotPR? Registered Users (C)

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