Legal Question in Immigration Law in New Hampshire

Dear lawyer,

Please read below content and let me know your views.

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To,

USCIS.

11 / 2 / 2010

Discussion : duration of requested approval

Mr.X was in the U.S . In L-1 status from April 23, 2005 to aug 20,2007. During that time , his employer filed an H1B and change of status request was approved, effective October 1,2007. On Aug 20, 2007, which was after the petition to change his status was approved , but before the effective date of the change of status, Mr. X departed the U.S. He remained outside of the U.S. for more than one year before returning to the U. S. for more than one year , the six year limitation on H1-b (including any L 1 time) status clock was restarted. As such , we have requested H1-B approval until November 1, 2013.

We would like to point out that alternatively, Mr.X is entitled to ' recapture' any time spent abroad since April 23, 2005. As noted above , his first entry into the U.S. in L-1 status was April 23, 2005. He then departed in theU.S. on January 19 2007, returning on January 30. ( 10 days out). He was also outside of the U.S. from Aug 21, 2007 to July 1, 2009(680 days out) adding 690 days to April 23 , 2011 results in an end date of March 13, 2013. We therefore request that should you find Mr.X ineligible for a full six year period beginning on July 1, 2009, that you nonetheless grant him H-1B status until March 13, 2013.

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Dear lawyer,

Please read above notes.

USCiS approved Mr.X extension till November 1,2013. Perm processing is in progress.

Kindly let me know whether his h1 -B clock was restarting and how many more years he can stay in U.S . By using current H 1B.

Awaiting your response , looking forward from you.

With warm regards

Harini

Harini.adaikalam@gmail.com

Asked on 5/14/13, 7:01 am

1 Answer from Attorneys

Marlene Hemmings Marlene Hemmings, Attorney at Law
0 users found helpful
0 attorneys agreed

If the person left the country before his 6 yr max was met, & he was out of the country for 2 or more years, then the employer would be requesting a "remainder", not a "recapture".

Either way, if USCIS granted the extension until 03/13/2013 (which was the time requested for the recapture/remainder of time left on his last H-1B max period of stay), this did not "restart" the H-1B clock.

If a person reaches their 6 yr max, they are only eligible for further extension of stay in H-1B status if either their ETA has been pending with DOL for at least 365 days (which would never happen unless the case was under Audit) or unless there is an approved I-140, but the priority date is not current.

If this person's H-1B expired 2 mos ago & his PERM case was filed within the last couple of months, then he is out of status & is also not eligible for an extension under AC21.

That being said, you should be asking these questions to the Attorney who filed the last H-1B extension &/or the Attorney who filled the PERM case.

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5/14/13, 1:27 pm

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