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Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28399
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Please help me determine my H1B eligibility period. VisaType

Customer Question

Please help me determine my H1B eligibility period .VisaType USEntry and ExitDates
B1 (CompanyA) 06/Nov/2003 - 04/Dec/2003
L1A(CompanyA) 16/Dec/2003 - 24/Apr/2004
L1A(CompanyA) 27/Jun/2004 - 28/Aug/2005
L1A(CompanyA) 24/Sep/2005 - 06/Aug/2006
L1A(CompanyA) 27/Aug/2006 - 01/Oct/2008
Got a H1B approved (COS - ChangeOfStatus) from CompanyB valid from 06/Nov/2007 to 09/21/2010. But never worked on H1B and continued to work on L1A from CompanyA till 01/Oct/2008.
L1A(CompanyC) 28/Feb/2010 - 29/May/2010
L1A(CompanyC) 06/Jun/2010 - 07/Jan/2013
L1A(CompanyC) 12/Jan/2013 - 30/May/2014
L1A(CompanyC) 23/Jun/2014 - changed status to H1B(CompanyD) on 01/Sep/2014
Got the unused H1B of CompanyB revived by CompanyD.
CompanyD applied for H1B revival from 04/Aug/2014 to 18/Aug/2016. USCIS came back with an RFE saying "our records indicate that beneficiary entered US in H1B nonimmigrant status on 28/Feb/2010. NonImmigrants holding H status may not exceed a total of 6 years stay in H or L status. The beneficiary will have reached his six year time limitation on 27/Feb/2016." To this RFE CompanyD said please provide till 17/Feb/2016 and H1B was approved (along with COS). Started work for CompanyD for the following period.
Used the I94 from H1B 01/Sep/2014 - 29/May/2015Now its been 13 months since i am away from USA, and CompanyE wants to use my unused (since ideally i only worked for 10 months on H1B) H1B.
Can you please tell me for how long will I will be eligible.
Submitted: 7 months ago.
Category: Immigration Law
Expert:  Judith Ludwic replied 7 months ago.

Hello my name is Judith, I have 35 years experience as an immigration lawyer.

I would be happy to help you determine if you have remainder time on the H1B maximum 6 years if you want to do some of the calculations of the amount of time you have for each of the periods on L1A and the amount of time you used on the H1B for Company D.

Here is a link to do the calculations between the beginning date to the end date of each period. Then give me the number of days per period and I will give you the answer.

http://www.timeanddate.com/date/duration.html

If you want me to do the calculations it will take considerable amount of time in excess of the value you placed on the question and I would offer to do that for you, however, as a premium service for additional cost.

If neither of those options are acceptable, just let me know and I will opt out of this question and leave it open to the other experts. It was posted at 8:18 and I gave a substantial amount of time to see if another expert was willing to pick it up and they had not so I wanted to give you some options so you would get an answer.

Judith

Customer: replied 7 months ago.
Hi Judith,This is the not the answer i was expecting. I do not want you to calculate the exact number of days.My question was., will i be eligible for 5+ years or less than 1 year on my H1B.
The reason is, i stayed in US for close to 6 years (4.8 years L1A + 0.8 year H1B) and stayed away from the country for 1 year.So will i be eligible for 5 years of remaining H1 or only 0.4 years of H1 .
Expert:  Judith Ludwic replied 7 months ago.

Staying outside the country only resets the clock if you then go for a visa under the cap.

If you want to use remainder time from the previously approved cap petition you only get what is left of the 6 year period (remainder time of the 6 years).

If you want a full new 6 years you need to wait until the new lottery in April 2017. Merely staying out of the country one year does not reset the clock on a prior approved petition

Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 7 months ago.
But then judith, why was I given around 1.5 years of H1 when my original petition was way past 6 years. The RFE states that I completed 4.5 years so only eligible for 1.5 years.
Expert:  Judith Ludwic replied 7 months ago.

It is not the time of the validity period of the petition that is counted.

It is the time you have used on that status that is counted.

Your original petition was never used. You had the full 6 years remaining MINUS the time spent on the L1A. Any time on L1A counts towards the allowable 6 years on H1B.

So apparently you had used 4.5 years of your L1A time and therefore had 1.5 years of remainder time for H1B status.

So you don't go back and count the time in 2007 because you didn't use any of that petition time in H1B status. You remained L1A. You just got the benefit of not being subject to the cap from that petition. Allowing you the remainder time of 6 years minus any time as L1A.

we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Expert:  Judith Ludwic replied 7 months ago.

I'm curious, did I address your issue regarding remainder time and how it is counted?

Apparently, I did not understand the crux of your original question and thought you wanted me to calculate the amount of time you had already spend in the US on L1A and H1B combined and whether you had any remainder time.

Judith

Customer: replied 7 months ago.
Hi Judith,Apologies if i was not clear. The actual question i had was whether I had 5+ years of H1 remaining or 1- years of H1 remaining.
If it is 1- years remaining, then how come i got 1.5 years of H1B approved when revived in Aug2014. You can see from the USCIS RFE that they are calculating the remainder time from the time i entered USA. Hence dont you think that since i am away from USA for 1 year, the remainder time on my H1B will be the unused H1B time in the 6 year period.If CompanyE will file for remainder time as 5+ years (stating that the beneficiary has worked in USA in H1 for 10 months and has been away from the country for 1 year) will it be denied ?Please advise.
Expert:  Judith Ludwic replied 7 months ago.

Before you departed what what your total time you had on the L1A because while you had an L1A you were never outside the US for 1 year so the clock never restarted.

Since you used a petition approved and did not get the H1B for Company D under a new cap number what was the total amount of time on H1B for Compay D?

Time on H1A PLUS time on Company D = how much total time?

I need the exact amount of total time. Company D petitioned you using the previous cap number before you reset the clock and spent one year outside the US.

So Co E cannot reset the clock using remainder time from previous cap petition if you had 6 years in the US before you left. They have to file a new cap petition based on reset clock and not remainder time.

Judith

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