Is there any Cool-off period for US Work Permit (H1 B Cap/L1 B)?

Asked almost 4 years ago - Maitland, FL

I was in USA for 2.5 years on L1 B and left USA in last year end. Since then I am outside USA. It is about 11 months now. I have few queries:

1. Is there any cooling-off period for US Work Permit (H1 B Cap/L1 B)?
2. I am planning to apply for H1 B Visa. What is the criteria of the cool-off period so that this time if I apply I will get the fullest term/duration permit (6 years) on my new H1B Visa?
3. If the H1 B application is filed with USCIS before one year (which I assume is the cool-off period), will I get the full term/duration permit?
4. Are the L1 and H1 visas treated independently with regard to cool-off period?

Please advise.

Attorney answers (2)

  1. Fernando Perez III

    Pro

    Contributor Level 8

    Answered . If you have been outside the U.S. for eleven months, your intended H1B employer in the U.S. should start the process as soon as possible. Given the potential delays in getting the LCA certified by the Dept. of Labor (they have glitches in the certification software and often send out incorrect denials that require the refiling of the LCA), and the fact that it will take, at best, two weeks for USCIS to approve the H1B petition, the case can be easily worked so that the approval takes place after th eone year anniversary of your departure from the U.S. By doing that you will be entitled to the full six years available under the H1B regulations (or more years if your employer sponsors you for a gree card).

    We would be happy to help you and your employer with this process.

  2. Harvey Mechanic

    Contributor Level 14

    Answered . By "cooling off" you seem to be referring to 8 C.F.R. ยง 214.2 which is available starting at the bottom of pdf page 52 of
    http://goo.gl/g4d8R

    Your situation would not be effected as long as the employer's petition for your H-1B is not approved within the next one month (that will start the full limitation period again.

    L1 and H1 visas are not treated independently with regard to cool-off period, as the "and/or" is used on the bottom of page 67 to refer to those two in the counting.

    I suggest the employer files soon as the limit for the H-1B cap is rapidly approaching for employment to begin soon. Otherwise, the filing would be for r employment starting the earliest of October 1, 2011 and the earliest I-129 filing then would be April 1, 2011.

    Harvey Mechanic, Attorney at Law
    Harvey108@hotmail.com
    Authorized to handle Immigration matters throughout the United
    States

    P.S. If you appreciate my time in giving you this please click the
    "thumbs-up" button at the bottom of this answer.

    This response is intended to be a general statement of law, should
    not be relied upon as legal advice and does not create an
    attorney/client relationship.

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