Is it possible to extend an unused H1B visa?

I got a job and my employer applied for H1B visa for me for 1 year that ends in about 10 months. My visa got delayed due to administrative processing and my employer decided he could not wait and terminated the contract but is willing to give me a spot next year starting just before my visa expires. Is it legal to use the current H1B visa to enter US in 9 months and apply for an extension? This will be easier than applying for a new visa (at least this is my assumption). My employer still did not revoke the petition with USCIS and currently I am outside the US.

Asked on October 6, 2011 under Immigration Law, New York


SB, Member, California / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Filing for an extension or filing for a new petition will be possible when you enter the US or it can be done up to 6 months in advance since that is when extensions can be filed.  The employer just needs to be sure that there is a position for you and file the extension in good faith.  It is legal to enter the US while the visa is still valid, assuming you are going to join the employer that is listed on your visa and you have a valid approval notice from that employer.  The time you have spent outside the US will not count toward your maximum  stay in H-1B status.  Good luck.

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