QUESTION

Eligibility for applying H1B visa for another 6 years.

Asked on Jul 17th, 2013 on Immigration - Texas
More details to this question:
Hi, My H1B got approved in Oct/2006. I came to USA on Jan/2007 and stayed till Aug/2009. Stayed in home country from Aug/2009 to Oct/2011. I cam to US again Oct/2011 and staying here till date on same H1B petition after filing extension. My 6 years period and Visa Expires on Dec/2014. Can i apply for New H1b in 2014 and stay in USA for another 6 years on that petition as i stayed outside of USA for more than 2 years??. Please advise Thanks Danny
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2 ANSWERS

Immigration and Nationality Law Attorney serving New York, NY
3 Awards
I believe that you would have a hard time convincing U.S.C.I.S. that it owes you another 6 years of H-1B status when your current H-1B expires in December 2014. Immigration may well believe that you cannot have your cake and eat it too – that is, benefiting from the full extent of your current H-1B and then asking for another 6 years just because you left the States for over a year during the time of your current visa status. There is more likelihood that U.S.C.I.S. would inform you that you made a choice in 2011 as to whether to return on your current H-1B or to attempt to obtain a new cap H-1B at that time. You can of course continue H-1B status under your current H-1B petition past 6 years under certain conditions such as it being 365 days from the time that a labor certification application has been filed or that an I-140 petition has been approved on your behalf. The other alternative is for you to return overseas for a year prior to applying for another H-1B visa. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.  
Answered on Jul 20th, 2013 at 8:44 PM

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Immigration Law Attorney serving St. Louis, MO
Partner at CoxEsq, PC
2 Awards
Since you stayed outside the US for over 365 days (1 year) your six-year limitation was reset and you get a new six-year limit.  Here's the regulation:   8 CFR 214.2 (h) (13) (i) (B)(B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.
Answered on Jul 18th, 2013 at 6:13 PM

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