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Regarding Clarification on H1B Extension Period

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asked Feb 12, 2017 in H1B: Extensions by anonymous
Team - This is regarding a clarification on H1B extension duration. Below is my scenario:

1. Spent 3 years on H1B (2007 to 2010).

2. Back to India in 2010, transferred H1B to current employer in 2014 (from India - Cap Exempt petition).

3. Traveled back to U.S in 2016 and here since then (approx. 1+ year)

Question: Since my Visa is expiring soon, I am applying for H1B extension in 2017. Please clarify what would be the duration for which I would receive the extension for ? Total years spent in U.S since 2007 is (3 + 1 = 4 years); Total year spent only considering last 6 years window = 1 year.

However, one of the immigration attorney mentioned that I would be able to get extension for full 3 years, reason being - it's usually evaluated in the last 6 years period how many years was spent in U.S i.e. 1 year only, hence I should be eligible for 5 more years. Is this true ?

When determining the extension validity, will the total years spent in the U.S be considered (or) will the total duration spent in the U.S only in the last 6 years window be considered ?

Appreciate your clarification on the above question. Please note my present employer filed cap-exempt petition in 2014 and is not a new one under lottery. However, I spent only 1 year in the last 6 years window although total is 4 years considering prior stay (which does not fall in the 6 year window).

1 Answer

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answered Feb 14, 2017 by Attorney Emandi (4,450 points)

Please find our answer below:

Question: Since my Visa is expiring soon, I am applying for H1B extension in 2017. Please clarify what would be the duration for which I would receive the extension for? Total years spent in U.S since 2007 is (3 + 1 = 4 years); Total year spent only considering last 6 years window = 1 year.

As you already spent 4 years of your H-1B, you will only receive 2 years extension.

However, one of the immigration attorney mentioned that I would be able to get extension for full 3 years, reason being - it's usually evaluated in the last 6 years period how many years was spent in U.S i.e. 1 year only, hence I should be eligible for 5 more years. Is this true ?

This is only possible for those individuals who left USA for more than one year and again filed the           H-1B under new H-1B quota. In your case this is not applicable as you have filed H-1B quota exempt petition in 2014.

When determining the extension validity, will the total years spent in the U.S be considered (or) will the total duration spent in the U.S only in the last 6 years window be considered?

H-1B is only for 6 years, you can only recapture the time to fulfill the 6 years period.

Secondly, one can extend his/her H-1B status even beyond maximum 6 years of authorized stay, provided she/he has an employment based green card petition filed on his/her behalf.

  • The foreign national is the beneficiary of an approved I-140 petition.

  • The foreign national is the beneficiary of a PERM petition or I-140 petition that was filed over 365 days ago.

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