H1-B 1 year gap rule

biru

New Member
Dear Mr. Rajiv and Forum members,

i am appreciative of the wealth of information contained in this forum. For the H1-B, there are existing questions on the FAQ (Ex: Q178) pertaining to the amount of time a person has to stay out of USA when he/she returns to India. "Any time spent here, will have to be subtracted from the one year". Also, a gentleman has raised a query about "1 year spent in Canada".



For the benefit of all of us, if you could kindly categorically answer it in a question aimed specifically for this, it would be helpful.

Here is the question and below are details pertaining to my case:

1) If a person leaves the United States before completing 6 years on his/her H1-B visa, and assuming the person has always been in valid H1-B status, when is he eligible to re-enter the United States ? Assume that he does not come to the United States even once for a year and stays in India after leaving the United States and has not travelled outside India for a year.

2) Would the unused time on the visa be considered as time spent outside USA and utilized for the purpose of determining date of eligibility ?

Specific details:
i entered US on August 13, 1997 for the first time.
i took 2 different vacations to India totalling 3 months, one in 1999 and one in 2000.
i left the US on April 23, 2002 for India and returned to India and have stayed in India since. i have not gone out of India since my return. Now, it is April 28, 2003.

My 6-year term and H1-B visa was valid upto August 12, 2003.
i was always in valid H1 status.

When would i be eligible to re-enter the USA ?
August 12, 2004 ? Or,
April 24, 2003 onwards ie. currently.

Also,
another Indian company has made a B1 Business Visitor visa in March 2003 for me to visit the US. it has an expiry date of Sept 2003. i have not yet been asked to travel to the US on that visa.

Would this B1 Business Visitor Visa be valid for travel to US ? i am under the assumption that since the B1 visa was made in March 2003, before completion of 1 year outside US, a new B1 or H1 stamped after April 23, 2003 would be needed for my travel.
 
I am not a lawyer, this reply is based on my own knowledge and experience. You only have 'status' while you are physically present in the country. You have not been in valid H-1B status, you have had approval to be in H-1B status. Distinct difference. You have been physically out of the US for at least a year so your H-1B eligibility clock has been reset. Of course, this presumes that you can verify that you have been out of the country.
 
1) if you are away from usa for 365 days then your H1B clock has been reset.
2) you are eligible from April 24, 2003.

i guess, it doesn't matter when you get the visa,
but what matters is when you are going to travel.
(please verify with a lawyer as this is my personal opinion)

Meow
 
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