If your current company can obtain an approved Labor Certification and an approved Immigrant Visa Petition Form I-140) then you can obtain a three year extension of your H-1B after the sixth year. (Assuming a backlog in the quota continues to exist.) This is possible, even though there are only nine months left on your current H-1B.

First, the Labor Department has become more efficient in 2009. The backlog of cases has been somewhat reduced. In addition, the Immigration Service has brought back premium processing for certain I-140 petitions, and your petition would be included. Thus, the I-140 could be approved within 15 days after a new Labor Certification is approved.

I recommend that you look at the applications that were previously filed on your behalf. Did your company ask to recapture time that you had spent outside of the United States? If not, you may be able to add more time by filing for an additional extension.

You indicate that your previous employer did a Labor Certification for you. Under normal circumstances, a seventh year H-1B extension may be obtained if a Labor Certification is filed prior to the beginning of the sixth year of the H-1B. But what if the Labor Certification was filed by another employer?

On May 12, 2005 William R. Yates issued a memo indicating that a seventh year could be obtained, if the one year requirement is met, even if the Labor Certification or Immigrant Visa Petition is approved for an employer who is not the H-1B petitioner. "The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension." (Yates' memo.)

This memo was written prior to the Labor Department regulations that call for the expiration of Labor Certifications when an Immigrant Visa Petition is not filed within 180 days of the approval of a Labor Certification.

These are the issues you need to discuss with your attorney. I wish you the best!

Peter Baumann

With respect to staying out of US for one full year, how does one show that? does one have to stay out of the country 365 days continously or one has to spend a total of 365 days, i.e. one can be visiting US intermitently, but has to show that he did spend 365 days outside US?