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Clarification on H1B clock reset rule

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Posted by JoeF18 (2170) 02 Feb 2018#26
to bell1:

That's my understanding of the rules, yes.
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Posted by keepthisgood (7) 02 Feb 2018#27
to JoeF18:

JoeF18,
when the H1B clock reset matters to me because I run out of 6 years on my 1st H1B, then left US in March 2017. however, my I-140 is approved in May 2017, not "current" yet. According to your interpretation, I could not file a new H1B until March 2018. but since my I-140 approved, will this factor help?

regards,
ted
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Posted by JoeF18 (2170) 03 Feb 2018#28
to keepthisgood:

It's not my interpretation, it is what good lawyers are saying, and it is also supported by the law. 8CFR214.2(h)(13)(i):

(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.


Notice the "may not be approved", which makes clear that the date of entry doesn't matter (approval comes before entry.) And a petition can not be approved if it wasn't approvable when filed.

An approved I-140 allows you to extend the H1 pas 6 years, even if you are currently not in H1 status or are abroad. From 8CFR214.2(h)(13)(iii)(D):

(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act. (1) An alien who is in H-1B status or has previously held H-1B status is eligible for H-1B status beyond the 6-year limitation under section 214(g)(4) of the Act, if at least 365 days have elapsed since:
(i) The filing of a labor certification with the Department of Labor on the alien's behalf, if such certification is required for the alien to obtain status under section 203(b) of the Act; or
(ii) The filing of an immigrant visa petition with USCIS on the alien's behalf to accord classification under section 203(b) of the Act.


Notice the "or has previously held H-1B status".
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Posted by keepthisgood (7) 03 Feb 2018#29
to JoeF18:

JoeF18,
thanks for the reply and sorry about picking the wrong word.
it looks like an approved I-140 helps. Since I filed my I-140 in 2016, it has been more than 365 days since filing. so I should be qualified for the law in section 8CFR214.2(h)(13)(iii)(D). but I have couple questions:
(1) can my new employer file the H1B petition on my behalf NOW? because until now, I am physically outside US less than 365 days;
(2) if yes, this time my new employer (employer B) would file the H1B as an extension or a totally new one? I am worried because I never worked with employer B before.

regards,
ted
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Posted by JoeF18 (2170) 03 Feb 2018#30
to keepthisgood:

It is a new, cap-exempt H1 petition. The employer's lawyer should know about that.
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Posted by keepthisgood (7) 03 Feb 2018#31
to JoeF18:

so I could apply for H1B now, not wait until March?

regards,
ted
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Posted by JoeF18 (2170) 04 Feb 2018#32
to keepthisgood:

Yes.
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Posted by keepthisgood (7) 07 Feb 2018#33
to JoeF18:

actually I have one funny question: I have an approved EB I-140, but not "current". According to AC21, I am eligible for 3-year H1B extension, no matter I was in H1B status before or not. Do I need to go through lottery step if a company wants to hire me? every year there are more H1B applicants in companies than the "regular cap". that is why USCIS do lottery. with approved I-140, do I need to go through H1B lottery?

regards,
ted
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Posted by LivingTheDream (15) 08 Feb 2018#34
Hello Experts,

Probably this question has been asked multiple times, but there is always a twist. Here is my scenario:

I worked for company-A in another country. Traveled to USA in Sep 2010 and closed my trip in March 2013. Consuming about 2 years and 5 months of H1-B. When I traveled back, I still had valid H1-B.

Later in October 2014 (after more than 1 year stay outside USA) my employer, Company-A, re-claimed by expired H1-B and I got approval notice valid till November 2017 (full 3 years). I traveled to USA in January 2015.

I switched employer in USA and Company-B applied for H1-B transfer. H1-B transfer was approved. Later Company-B applied for extension in April 2017 and got approved I-797 and new I-94 valid till April 2020.

Now, if I club all my stay in USA for the period from September 2010 to Till date (Feb 2018), I will reach H1-B cap in August 2018 (recapturing the period I was outside USA). I have few questions:

1. USCIS approved my previous H1-B extension till April, 2020, even though my H1-B max out in August 2018 (per my calculation). It is valid for me to stay in USA based on approved petition and new I-94 til April 2020 without approved I-140? When USCIS approved my petition in April 2017 (till April 2020), my PERM was was not filed. Still waiting for PERM approval.

2. If my H1-B clock got reset when I was out of USA for more than a year and USCIS is correct in approving my petition till April 2020? H1-B extension applied in October 2014 (after being out of USA for more than a year) with I-129 mentioning my previous stay details and processed in premium, making me believe that extension was filed on old H1-B.

Thanks in advance for your reply.
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Posted by trackkmygc (933) 08 Feb 2018#35
to LivingTheDream:

1. While the approval from USCIS till April 2020 is valid. But it seems like a genuine mistake on part of USCIS to provide extension beyond 6 years given that you don't have PERM approval yet. Please consult your attorney on this because it may later come back to haunt you when USCIS puts the burden on providing proof on legal status beyond 6 years
- Two things can happen here
a)You ignore it and stay/work happily till April 2020 and you face no issues in future. Happy ending :)
b)You ignore it then at a later stage say during I140 or next H1b extension USCIS issues RFE on status on stay beyond August 2018. Even in this case your attorney can provide the proof of USCIS issued approval till 2020...but would USCIS honor it later is a big question

2. No the clock does not reset itself just by staying outside for one year. Since it was H1 extension and not a fresh H1 via yearly cap
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Posted by LivingTheDream (15) 08 Feb 2018#36
to trackkmygc:

Thank you for your insight. I was kind of apprehending the reply.
My company also asked me to leave USA before expiry. Still waiting for my PERM approval and I-140 thereafter.
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Posted by trackkmygc (933) 08 Feb 2018#37

Thank you for your insight. I was kind of apprehending the reply.
My company also asked me to leave USA before expiry. Still waiting for my PERM approval and I-140 thereafter.

to LivingTheDream:



If you get PERM and I140 approved before August 2018 then, you can apply for extension based on that and need not leave USA
Even in the case that your PERM is pending for 365 days then you can apply for 1 year H1b extensions
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Posted by JoeF18 (2170) 08 Feb 2018#38

actually I have one funny question: I have an approved EB I-140, but not "current". According to AC21, I am eligible for 3-year H1B extension, no matter I was in H1B status before or not. Do I need to go through lottery step if a company wants to hire me? every year there are more H1B applicants in companies than the "regular cap". that is why USCIS do lottery. with approved I-140, do I need to go through H1B lottery?

regards,
ted

to keepthisgood:


You need to have been on H1 and counted in the quota at some point in the past to get an H1 extension based on an approved I-140.
If you have never been in H1 status, you would have to go through the lottery.
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Posted by LivingTheDream (15) 09 Feb 2018#39
to trackkmygc:

Do you know of any other way to extend current H1-B without leaving US? My PERM was applied in sixth year (after completing full 5 years), so that option will not work.

What if I change employer in USA ?
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Posted by trackkmygc (933) 09 Feb 2018#40
to LivingTheDream:

"What if I change employer in USA ?"

This would not help as your 6 years of H1b is nearly ending
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Posted by keepthisgood (7) 12 Feb 2018#41
to JoeF18:

another off-topic question
if my H1B is set to start at March 1st on the form I-797, and it is approved. however, it takes a while for me to get an entry visa at US embassy, need to go through the background checking. then when I land in US, it is already march 15th, will there be a problem at the entrance? if I came through, do I need to start work the next day?

regards,
ted
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Posted by JoeF18 (2170) 12 Feb 2018#42
to keepthisgood:

If it is only a few weeks it most likely doesn't matter. If it is a long delay, the officer at the POE may want to see a letter from the employer that the job still exists.
For your second question, as per 20 CFR 655.731, you have up to 30 days to report to work for the employer after entering with an H1 visa (up to 60 days if changing status or doing an H1 transfer in the US.) Of course, as soon as you report to work (that includes training, interviews with clients, etc.) you have to get paid.
https://www.gpo.gov/fdsys/pkg/CFR-2012-title20-v...

(6) Subject to the standards specified in paragraph (c)(7) of this section (regarding nonproductive status), an H-1B nonimmigrant shall receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer.
(i) For purposes of this paragraph (c)(6), the H-1B nonimmigrant is considered to “enter into employment” when he/she first makes him/herself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter.
(ii) Even if the H-1B nonimmigrant has not yet “entered into employment” with the employer (as described in paragraph (c)(6)(i) of this section), the employer that has had an LCA certified and an H-1B petition approved for the H-1B nonimmigrant shall pay the nonimmigrant the required wage beginning 30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition, or, if the nonimmigrant is present in the United States on the date of the approval of the petition, beginning 60 days after the date the nonimmigrant becomes eligible to work for the employer. For purposes of this latter requirement, the H-1B nonimmigrant is considered to be eligible to work for the employer upon the date of need set forth on the approved H-1B petition filed by the employer, or the date of adjustment of the nonimmigrant's status by DHS, whichever is later. Matters such as the worker's obtaining a State license would not be relevant to this determination.

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Posted by keepthisgood (7) 23 Feb 2018#43
to JoeF18:

Hi,
thanks for the reply. I have been working on my H1b visa application. I know I could apply upto 3 year. but I wonder if the 3-year extension means more strict requirements than 1-year extension.

regards,
ted
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Posted by king12345 (3) 23 Feb 2018#44
I have I-140 approved, and my H1b is expiring in 3 months. I asked my employer to file H1b extension based on approved I-140. He's delaying to file extension petition, and i received the below statement. Does any one heard of this 240 day rule ? Are there any criteria (such as extreme circumstance) to qualify for this rule ?

Once the H1b Extension is filed prior to the expiration date, the employee is automatically granted 240 days of work authorization if the visa is not adjudicated by the expiration date.
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Posted by trackkmygc (933) 23 Feb 2018#45
to king12345:

The 240 day rule is that once a H1b extension is filed and is pending decision from USCIS then from the I-94 expiry date one can work legally until 240 days for the position petitioned
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Posted by king12345 (3) 23 Feb 2018#46
to trackkmygc:

Thank you for the clarification.

In this case, does USCIS issue any letter stating the 240 day rule and issue temporary work authorization ? I would like to see if such letter can be produced as a proof to DMV to renew drivers license until USCIS approve the petition.
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Posted by trackkmygc (933) 23 Feb 2018#47

Thank you for the clarification.

In this case, does USCIS issue any letter stating the 240 day rule and issue temporary work authorization ? I would like to see if such letter can be produced as a proof to DMV to renew drivers license until USCIS approve the petition.

to king12345:



There is not such specific letter issued by USCIS
DMV rules vary from state to state and office to office...in general H1b receipt notice should suffice to extend DL for 240 days past the I94... a DMV might require additional processing on their part (SAVE verification process) before issuing the DL
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