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May 26, 2005

H-1B allowed to be filed 6 months prior to October 1, 2005 deadline

Free Question: Here is my situation, please see if you can help me by giving your opinion: I have worked in the US on H1 (from Nov, 1998 to August 11, 2004) for about 5 years 9 months. Presently, I am back in my home country can I have my paper work submitted now or have to wait until August 11, 2005 (so that I will complete one year out of the US) even though the validity of the visa would be October 1, 2005. My only concern is if I have to wait until August, 2005, it may be too late, and we may hit the cap by then and I may not be getting the H visa during this year. I sincerely appreciate your time and help.

Answer: the rule is that once an H-1B worker reaches the end of status, a new H-1B petition will not be approved unless they have resided and been physically present outside the United States for a year. So you may apply for a second H-1B visa on August 12, 2005. The cap has not been reached yet and there has been no announcement from immigration regarding the cap. This way you will meet the FY2006 deadline on October 1, 2005. My office can process an H-1B application within 72 business hours of receipt of all information.

Posted by VisaLawyer at May 26, 2005 08:51 AM

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