You have a choice.
a) Apply outside the cap for the remainder of your 6 year limit. You appear to have used just under 3 years already.
b) Since you have been outside the US for at least a year, you can apply for a new 6 year period, but that will be under the FY2014 cap, which opens in April 2013 for a start date of October 2013.
This is covered in the USCIS Micael Aytes Memo dated December 5, 2006http://www.uscis.gov/USCIS/Laws/Memoranda/Stati...
There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the "remainder" of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either
(1) to be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted or
(2) seek to be admitted as a "new" H-1B alien subject to the H-1B cap.
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http://www.trackitt.com/usa-discussion-forums/h1b/1455265885/labor-perm-initiated-if-i-don-t-get-h1b-extension-in-time
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Labor/PERM initiated: If I don't get H1B extension in time?
Q) I am working for a global management consulting company and I am in the 6th year of my H1B. My H1B expires in April 2015. My company has just initiated my green card process (obviously its late). The labor/PERM application will be filed by September 2014.
I am afraid that I may not get a H1B extension, before my H1B expires in April 2015. If I do not get an extension in time then my understanding is: I will have to leave the US in April 2015 and work from a company office outside of the US. In this case:
(1) When will I be able to re-enter the US?
(2) Can I re-enter as soon as my labor and I-140 gets approved?
(3) On what Visa will I re-enter the US? Can I re-enter on L1 visa?
(4) If I have to re-enter on H1B, then do I have to go through the cap and wait till October 2015 to re-enter? or can I re-enter immediately after Labor & I-140 is approved?
(5) Will I being outside of the US affect/halt/delay my green card processing?
Please let me know if you need any additional information on my case.
Appreciate your advice/help on this matter. Thanks a lot in advance.
I am afraid that I may not get a H1B extension, before my H1B expires in April 2015. If I do not get an extension in time then my understanding is: I will have to leave the US in April 2015 and work from a company office outside of the US. In this case:
(1) When will I be able to re-enter the US?
(2) Can I re-enter as soon as my labor and I-140 gets approved?
(3) On what Visa will I re-enter the US? Can I re-enter on L1 visa?
(4) If I have to re-enter on H1B, then do I have to go through the cap and wait till October 2015 to re-enter? or can I re-enter immediately after Labor & I-140 is approved?
(5) Will I being outside of the US affect/halt/delay my green card processing?
Please let me know if you need any additional information on my case.
Appreciate your advice/help on this matter. Thanks a lot in advance.
A ) You can re-enter US after your I 140 is approved and then employer can file an H1b petition which is cap exempt based in approved I140. There will be no delay in GC as long as the employer is willing to hire you. If you are in US, you can apply for I485 when your date becomes current. Or apply for consular processing if you are outside US.
A) 1. After your I-140 is approved, your employer has to apply for H1 extension (cap exempted). You need to get the H1 visa to re-enter US.
2. No, you cannot re-enter as soon as your I-140 gets approved since you do not have a valid visa.
3. As stated above in answer 1, your employer can apply for H1 extension based on your I-140 approval since H1 is a dual-intent visa (meaning you can enter with an immigration intent too). I think you can re-enter on L1 visa too, because it would not be related with your GC application process.
4. If you to re-enter on H1B, as mentioned earlier you need to get the H1 extension stamped and enter with valid visa. You cannot re-enter just on the basis of I-140 approval.
5. GC is for future job and it is not affected while you are being outside the US.
2. No, you cannot re-enter as soon as your I-140 gets approved since you do not have a valid visa.
3. As stated above in answer 1, your employer can apply for H1 extension based on your I-140 approval since H1 is a dual-intent visa (meaning you can enter with an immigration intent too). I think you can re-enter on L1 visa too, because it would not be related with your GC application process.
4. If you to re-enter on H1B, as mentioned earlier you need to get the H1 extension stamped and enter with valid visa. You cannot re-enter just on the basis of I-140 approval.
5. GC is for future job and it is not affected while you are being outside the US.
Thanks freedomoflife.
Just a quick followup question.
Q) You mentioned in Answer #1 that the H1 extension is cap exempted but what will happen in following scenario:
My current H1B is expiring in April 2015. If I get Labor/PERM and I-140 approval after my H1B expiry (say in June 2015) and I have left the US in April 2015 (because my H1 expired) and I am working from my company's office outside of the US. Can my company file a cap exempted H1 in June 2015 and bring me back to US immediately? or do I need to file a fresh H1, go through the cap and come back only after Oct 2015?
Just a quick followup question.
Q) You mentioned in Answer #1 that the H1 extension is cap exempted but what will happen in following scenario:
My current H1B is expiring in April 2015. If I get Labor/PERM and I-140 approval after my H1B expiry (say in June 2015) and I have left the US in April 2015 (because my H1 expired) and I am working from my company's office outside of the US. Can my company file a cap exempted H1 in June 2015 and bring me back to US immediately? or do I need to file a fresh H1, go through the cap and come back only after Oct 2015?
In both cases, you are eligible for extension "not subject to cap". All above mentioned points applies if you are still employed with your current company. So just keep your fingers crossed.
A) Also, for your question: Yes, your employer can file H1 (not subject to cap) immediately after your I-140 approval and get you back in US after the stamping. You do not need to go through a fresh H1 (under cap).
Just a clarification:
This follow-up question is regarding the point (b) in the post above by "justdoitnow". If my case gets an audit, can I still re-enter US in Sept 2015 on the basis that PERM decision is pending for 365 days since priority date.
to bhagwaro:This follow-up question is regarding the point (b) in the post above by "justdoitnow". If my case gets an audit, can I still re-enter US in Sept 2015 on the basis that PERM decision is pending for 365 days since priority date.
yes, you can reenter with a valid H1 extension based on the PERM pending for more than 365 days. you can't just reenter just because your PERM has been pending for that long--you need the H1 extension
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H1B stamping without Client Letter
Q)I working as contractor hourly basis at client side, I am planing to visit MUMBAI consulate for VISA Stamping.
My employer ( who takes care of my salary and VISA stuff along with Green Card, I do have approved I-140 and 1 years H1B exten-All approved.)
My Vendor ( Who has contract with client and my employer, I am working contractor from my vendor to a client location directly )
My Client ( XXXXX is not ready to provide client letter -It is Client’s corporate policy to not sign employment letters for non-employees. That has been the case for several years.)
My Current manager (Vendor) who has signed contract with my client is saying following.
Here is what he is planing do in place of the letter:
- He will write a letter explaining your employment for Vendor @ Client
- He will provide the original SOW
- He will provide the original Purchase Order
- You’ll need to take photo copies of the front and back of your Client badge
- You’ll need to take photos of your work space at Client
- You’ll need to print copies of all timecards up until the day you leave
- A screenshot of yourself in the Client online directory
- Print out of correspondence with your Client email address included, ideally regarding project
Please guide me whether I should plan for India trip on the above documents ? is it sufficient to avoid 221(g) or any blockage.
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OP says he can not get client letter so no point saying you "have" to get it.
Get a letter from manager that company can not provide as it is not their policy. Or they can provide if requested by consulate. Please make sure your manager provides his name, designation, complete contact information.
Please prepare a list of contacts of your manager, colleagues and your employer. phone numbers e-mails etc. Also org chart of your team in client company.
get a picture of yourself in front of office building or your name in office directory (web). This may not be allowed at some client sites.
Print time sheets if you fill them at client site. Make sure your complete name gets displayed. Carry your badge to interview if possible and allowed.
You need to justify why you can not provide client letter. At the same time provide proofs that you work there.
In my case I had a client letter but that was written badly. So I got 221g. luckily resolved in 10 days. I also had all supporting docs but visa officer wouldn't let me give them to him. So be prepared. since no client letter make sure you have a copy of LCA indicating location of work, wage etc. VO will most likely ask for it.
all the best!
Get a letter from manager that company can not provide as it is not their policy. Or they can provide if requested by consulate. Please make sure your manager provides his name, designation, complete contact information.
Please prepare a list of contacts of your manager, colleagues and your employer. phone numbers e-mails etc. Also org chart of your team in client company.
get a picture of yourself in front of office building or your name in office directory (web). This may not be allowed at some client sites.
Print time sheets if you fill them at client site. Make sure your complete name gets displayed. Carry your badge to interview if possible and allowed.
You need to justify why you can not provide client letter. At the same time provide proofs that you work there.
In my case I had a client letter but that was written badly. So I got 221g. luckily resolved in 10 days. I also had all supporting docs but visa officer wouldn't let me give them to him. So be prepared. since no client letter make sure you have a copy of LCA indicating location of work, wage etc. VO will most likely ask for it.
all the best!
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H1-B Extension Denied after RFE, I-94 Expired, New LCA
Hello Everyone,
Any insights on my case would be really helpful. My I-94 expried on Sept 30, 2014. My Consulting company filed for my H1B Extension on Sept 7th 2014, got RFE on Oct 7th and it got denied on Oct 20th, 2014 after RFE submission. During this process, my contract ended with client and I was out of job.
What are my options to stay in status? If i get a new job, can my employer file for a new LCA when I am still out of status? My husband in on OPT, can I transfer to F2 dependent as well if I can't file for a new LCA?
Any information will be very helpful. Thank You!
Any insights on my case would be really helpful. My I-94 expried on Sept 30, 2014. My Consulting company filed for my H1B Extension on Sept 7th 2014, got RFE on Oct 7th and it got denied on Oct 20th, 2014 after RFE submission. During this process, my contract ended with client and I was out of job.
What are my options to stay in status? If i get a new job, can my employer file for a new LCA when I am still out of status? My husband in on OPT, can I transfer to F2 dependent as well if I can't file for a new LCA?
Any information will be very helpful. Thank You!
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My H1B got over last monday (Oct 13th, 2014). My wife is on H1B though and had filed for a CoS (Change of Status) through her employer 10 days before my end date. They failed to file it on time and are now saying they cannot as I am no more on a valid status. They are asking me to go back to India.
My question is -
1) How many days do we have to file for CoS even after my H1B has got over? (She intends to push her employer in case there is time)
2) Can she file for CoS on her own or through a lawyer?
3) What is the best option left for me? (Going back to India is the last thing i want to do)
My question is -
1) How many days do we have to file for CoS even after my H1B has got over? (She intends to push her employer in case there is time)
2) Can she file for CoS on her own or through a lawyer?
3) What is the best option left for me? (Going back to India is the last thing i want to do)
A) Yes, You can file today online on your own. dont wait for too long. It is very easy process. i have done it couple of years back
https://elis.uscis.dhs.gov/cislogin/CISControlle...=
https://elis.uscis.dhs.gov/cislogin/CISControlle...=
