After 6 years when can I get my next H1 term

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Clm_ramee

Registered Users (C)
Hi All,

Thanks for all your valuable advice. You guys are more informed than my attorney. My situation here:

My 6 year H-1 is expiring on April 11, 2008 (Including re-captured days)

Labor (PERM) was applied on July 14, 2007 (at Texas service center)
Labor was approved on September 21, 2007.

I-140 was applied on November 2, 2007
I-140 is still pending.

I will have to leave the US by April 21, 2008 (10 days grace period). My questions are:

1. Should I wait for one year and get my next H1 starting from April 21, 2009?

2. Or based on the labor application, can I get a H1 starting from July 15, 2008?

3. If I get the new H1 now, will it be called immigrant H1? How easy is it to get a visa from India with such a H1? Let me know. Thank you.
 
Please read here for the latest update on H-1B. Your completed the maximum limit on H-1B - so next time you apply, your application is subjected to quota. In my opinion your employer can apply for H-1B with a start date of April 21, 2009. This is within the Oct 2008- Sep 2009 year. Therefore your employer should apply on April 1, 2008 (12 days to go). If your employer applies on April 1, 2009, the earliest start date will be October 1, 2009.
 
Clm_ramee said:
Hi All,

Thanks for all your valuable advice. You guys are more informed than my attorney. My situation here:

My 6 year H-1 is expiring on April 11, 2008 (Including re-captured days)

Labor (PERM) was applied on July 14, 2007 (at Texas service center)
Labor was approved on September 21, 2007.

I-140 was applied on November 2, 2007
I-140 is still pending.

I will have to leave the US by April 21, 2008 (10 days grace period). My questions are:

1. Should I wait for one year and get my next H1 starting from April 21, 2009?

2. Or based on the labor application, can I get a H1 starting from July 15, 2008?

3. If I get the new H1 now, will it be called immigrant H1? How easy is it to get a visa from India with such a H1? Let me know. Thank you.
Click to expand...
talk to a lawyers.
In case your I140 gets approved, you MAY be able to apply 7th year H1 even though you are out of the US. The same after July 14 2008 when the LC became 365 days old.

In the old CIS memo, USCIS was clear that one who has exhausted 6 years and was not on H1 status when beneficiary met the 7th year requirement was not eligible to 7th year.
I remember CIS published memo in Dec 2006 and they changed this rule... i.e. even though one is not on H1 status when 7th year req is met, s/he is eligible to 7th year.

I remember at one of the conference calls with Mr Khanna last year, he advised someone who has exhausted 6 year and was using EAD for 2 years to get back to H1 status. It became possible after 2006 Dec memo.

Not sure how this works when one is outside the US, but there might be a slight chance it works. Ask lawyers.
 
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PS. The memo I'm talking about is the same one manwithnoname pointed... the section B, page 3.
It says 7th year may be granted regardless of whether one is currently on H1 status or whether one is in the US or abroad.
 
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Thank you Manwithnoname and GotPR. I work for an university, so we do not come under the H-1B cap.

GotPR - From the document I understand that we can apply for 7th year H-1 extension based on my labor, even though I will be in India. So I will have to go on a long vacation from April 21, 2008 or so till June 15, 2008.

And I must ask my University to start the new H-1 application soon. As they have to post ads, etc and it will probably take three months. And once approved they have to send me the papers to India. I can go to the consulate in Chennai and get a visa.

I hope I am correct.

Ramesh.
 
if you rely on 365 days labor, you have to leave til July 15 or if I140 gets approved before that(and your PD getting regrogressed), you may come back to the US earlier.

I don't get what you mean by "need to ask Univ to start new H1 soon". You are exempt from quota, but still constrained by 6 year rule.
Are you talking about transfer ?
 
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Hi GotPR. I will have to rely on the 365 labor thing. Because that will be earliest. I don't think the I-140 will get approved, as I am from India and they filed me under EB3 skilled labor category. Which means I should leave by mid April and stay in India till June 15, 2008.

Since H1 process takes three months or more. First the university has to place ads for 60 days. Then fill in and send the papers to USCIS. USCIS will take its time to issue my new H-1 document. So If I need to be back on June 15, 2008, I need to have the H-1 papers in hand to get my visa. We have only four months left for June. So that is what I meant by starting the 7th year H1 'application process' soon.
 
You will have to be outside of US for a year. If your current H1 expires on April 11, 2008 you can re-enter US on a new H1 until April 12, 2009.
 
Dry Heat, what about my Labor and the I-140? Did you take them into consideration.

What you had mentioned, applies for people who have not applied for their permanent residency, is it not?
 
Gotcha. Out from US from April until Jun when your LC will become 365 days eligible. Correct?
I would check this with attorney. There has to be easier way then leaving US.
 
hi
my 6 years h1 term expered on29th april ,and i left the USA on the same day ,because i got my 129 on 28th.my labor is not 365 days old,and ny 140 is pending since octobet2007. after labour 365 days old /or 140 approval , am i eligible for 7th year extension?
If so Do i need to wait till 365 days time frame to file Extension?
 
Since you completed the 6 years, you are not eligible for H-1B extension. Only possibility is trying for recapturing the time spent out of the US.
 
No ... you can either resume employment after 1 year or in the worst case, still avail the consular processing for your GC when your priority date becomes current.
 
Hi GotPR?

do you suggest any idea?
thanks in advance...

B. Periods of Stay in H-1B Status Beyond the Six Year Maximum
In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).
 
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h1b_7thyear, Can you give the exact dates...or close to approximation, when you H1 expires/expired? Did you ever travel abroad while you were on H1? What is the exact physical (no. of days/years) stay in US? When was the labor filed? when was I-140 filed?

But don't be discouraged...even if you have exhausted all the options, you can go to ur home country and apply for h1 extension once you have crossed the 365 days of applying the labor. You would not fall under the new H1 quota. That's the new interpretation of USCIS rules.

Consult an attorney and quote what you have posted:
In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).

I am sure there is a way out.
 
h1b_7thyear said:
Hi GotPR?

do you suggest any idea?
thanks in advance...

B. Periods of Stay in H-1B Status Beyond the Six Year Maximum
In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).
Click to expand...
prolly nobody actually tried to regain H1 status outside the US with 365 days labor after finishing 6 year H1, but my wild guess is you may be able to regain H1. The rule says you don't need to be on H1 status when you are going to ask 7th years.
I remember one of the conference calls with Mr. Khanna about a year ago, that somebody already exhausted 6 year of H1, and working under EAD. Mr. Khanna suggested him to get back to H1 because his LC had reached 365 days milestone.
Only difference between this case and your case is whether you are outside the US or not.

Talk to lawyers.
 
thanks PR
thanks ramachandran
here are my exact dates

laboor filed Aug15th 2007.
approved oct4th 2007.
6 years term ended on feb20th 2007.apply for recapturing holidays and got approval upto apr29th.
left usa on 29th april.now i am in india..
 
h1b_7thyear said:
thanks PR
thanks ramachandran
here are my exact dates

laboor filed Aug15th 2007.
approved oct4th 2007.
6 years term ended on feb20th 2007.apply for recapturing holidays and got approval upto apr29th.
left usa on 29th april.now i am in india..
Click to expand...

Well! wait till Aug and I hope your sponsoring company files your H1 again after Aug 15th 2008. You get h1 for 1 year...based on your Labor certification.
If your company has filed your I-140, and if its approved, then you can apply for 3 year extension and you don't have to wait till Aug 15, 08 to complete the 365 days vetting period.
 
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