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Can I apply for H1B in September 2013 with a start date of March 2014? Leaving US on Feb 21st 2012 to reset my H1b clock.

Allen, TX |
Filed under: Immigration US visas

I exhausted my 6yrs of H1B and I will be out of USA from March 2012- march 2013 to reset my H1B clock. Can my employer apply for h1b in sept with a start date of march 2014? Or do I have to wait for April 2014 new cap and then come back in October 2014?
Will I be subject to cap when my employer files for my second H1B?

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Attorney answers 3

Posted

Using that strategy, it will be a new H-1B subject to the cap. As such your earliest filing date would be April 1, 2013 with a start date of October 1, 2013. You should have a lawyer review your documents to see if there is any way to recapture time or otherwise extend your H-1B so that you don't have to start over. Also, if you work for the employer at his facility abroad for one year, then you may want to look into obtaining an L-1 visa. If you are Mexican, Canadian or Australian you might have a TN or E-3 option.

This answer is not to be construed as legal advice. For a free telephone consultation, contact us now at: info@moralespllc.com (512) 215-5235 Austin, (214) 377-4822 Dallas, (713) 242-1783 Houston, (210) 957-8845 San Antonio Please dial extension 500

Asker

Posted

Thanks for the response. I have already recaptured my time outside the country over past years. So there is no more days to recapture. Since Green card and Labour was not applied I dont have an option to extend my H1-B either. I am being temporarily transfered to Canada by my employer on TN visa and I will be spending my next 12 months or so before my employer files an H1-B or an L1 Visa. Based on your comments i see that, in case of H1B i will be subject to the cap. I wanted to double check the dates on which my employer can file my new H1B, is it April 2013 or April 2014? In case my employer wanted to apply L-1 Visa, what are the options?

Posted

Mr. Morales has provided opu with an excellent reponse. Your new prospective employer will have to do the new filing at the appropriate time.

Good luck!

This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. A consultation with an experienced attorney is always the best way to go.

Asker

Posted

My question here is, what is the "appropriate time" ?

Eugene J. Glicksman

Eugene J. Glicksman

Posted

The earliest filing would be the beginning of April 2013 with a start date of October 1, 2013. Whether that is good for your employer is a separate issue.

Posted

Absent any action by Congress, H-1B visas will run out before September 2013.

Your employer needs to retain an experienced immigration lawyer to review all the facts, advise them, and handle the case. Your employer can find one through http://www.ailalawyer.com.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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