Attorney /Experts please help

[tptusa]

Dear Attorney/Experts,

I would like to get your views/ advise on following matter

I am H1B holder (company XXXX)and my greencard petion is pending. Planning to go out of country for a year due to family problems and then planning to comback to US on H1B. I have used 5 years of time on H1B and have a year of usused H1B time.

My questions are

1. Since i leave US for a year, can I come and work here for another 6 years on same H1B or do i need to apply for separate H1B under visa quota once i come here

2. Will i be able to join some other company (company YYYY) in India , work for a year and then go back to US and work for same h1b employer.(company XXXX)---Is this cause any problem for my H1B petiion /Greencard process)


3. If i want to return back to US using advance payroll, can i apply AP from my home country?

4. I have valid EAD till Nov'08. If I'm going to return back to US next year , can i apply EAD extension from my home country ?


Looking for your valueable suggestions to take better decision

Thanks,Gopi

 

[nj_skm]

Dear Attorney/Experts,

I would like to get your views/ advise on following matter

1. Since i leave US for a year, can I come and work here for another 6 years on same H1B or do i need to apply for separate H1B under visa quota once i come here

Why do you need the "same" H1B visa again? If you're out of more than a year (365) days, you can get a new H1B visa which will be valid for six years.
Your GC processing is not tied to your old H1B visa so you shouldn't have to worry about it.
One problem is that you might not make the cut, as the H1B petitions are far more than the cap and the USCIS seems to make random decisions on which ones to approve.
In this case, you could apply for an H1B using your old H1, since you'll have one year remaining and then keep getting extensions once you use up 6 yrs.
For example, let's say you applied for your present H1 in 2003 and you want to come back in 2009 and continue. You can apply under the 2003 quota and not face issues with the 65000 quota running out for you.

2. Will i be able to join some other company (company YYYY) in India , work for a year and then go back to US and work for same h1b employer.(company XXXX)---Is this cause any problem for my H1B petiion /Greencard process)

Shouldn't give any problems for either. H1B is by definition a temporary visa and hence you leaving and coming back should be ok.
Also GC is for future job offer and hence you leaving the firm for a year and then coming back shouldn't hurt the processing, as long as the intent is there to take up the position once the GC is approved.

3. If i want to return back to US using advance payroll, can i apply AP from my home country?

Advance parole is ONLY if you're already in the US when GC is pending and need to travel outside the US before GC is approved. If you're outside the country, you'll need to wait for GC approval before you can enter the country.
I'm not sure how your case will work out here. Most likely the answer is a no.
Looks like AP might not work out for you.

4. I have valid EAD till Nov'08. If I'm going to return back to US next year , can i apply EAD extension from my home country ?

I don't think so.

Questions 3 and 4 I'm not sure about so check out other people's answers.

 

[jk0274]

The information here may be helpful to you.

You cannot apply for a Advanced Parole from your home country as a method of preservation of your Adjustment Application.

You also must understand that if any RFEs / fingerprint renewal requests / interview requests are issued to you for your I-485 application and you do not respond or appear, your application may very well be considered abandoned.

 

[manwithnoname]

Answers below:
1. Since you have used only 5 years on the 6 year limit, your employer can file an extension with recapturing the unused time. On the other hand, if your employer files for a new quota subject H-1B and you stay out of the U.S. for more than a year, then yes you will get another 6 years.
2. Yes, your employment outside of the U.S. has no relevance as long as the GC sponsoring employer establish the intent to hire you.
3. No, it is an I-1485 ancillary - you must be in the U.,S. throughout the AP processing stage.
4. No, for the same reason as above.

For staying aborad about a year, I would think about changing the I-485 case to consular processing.