I will be completing 1 year outside USA from AUG 31 2012 TO Sep 2013. Can my petition be filed during april 2013 time frame with entry in oct1st 2013. Dates wise i will be completing 1 year from AUG 31 2012 - SEP 1 2013 before i go for visa interview.
An H-1B employee who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six year period of maximum admission, rather than seeking a new six-year period of admission. ..USCIS for now will allow an alien in the situation described above to elect either (1) to be readmitted for the remainder of the initial six year admission period without being subject to the H-1B cap if previously counted, or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.
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§ 214(g)(4) of the Immigration and Nationality Act (“INA”) and 8 CFR § 214.2(h)(13), which relate to the maximum period of admission for H nonimmigrants. Petitions for aliens classified as H-1B nonimmigrants who have spent the maximum period of time in the United States permitted by statute in H-1B status may not be APPROVED unless they have remained outside of the United States for the specific period of time referenced in the related regulation.
Based on the previous regulation it seems that before they approve your petition you must have been outside of the US for a year. Therefore I dont think the escenario you present will work, unless some how they approve the application after August 31, 2013 which is very unlikely.
I agree with my colleagues.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.