H1 - to H4 - to H1

[xtetic]

Guys,
I have been reading some posts since yesterday. I still haven't been able to get a confirmed clarification.

I am on H1, and change my status on H4 for lets say 8 months. Then decide to start working again on H1, would I be counted against the cap again?

I have been reading some posts which says if I have been counted against the cap once in last 6 years, I won't be counted again. Does that apply when one changes visa status from H1 to H4, and then back to H1.

Has anybody done this successfully. Can you point to some clarification or law from USCIS itself?

[DMX17]

If you were counted "in the past" and still have H1 time remaining, you are cap-exempt till you use up all your H1 time (6 years). L1+H1=6 yrs.

This is called the "Remainder Option". So if you got your H1 in 1999 and used 1 yr at that time. You can apply any time to get your 5 years even if it's been more than six years. You have to have a proof that you were counted in the past. Usually, an H1 I-797 Receipt copy, visa stamp, OR I-94 works.

http://www.immihelp.com/forum/showthread.php?t=40595

[xtetic]

thanks for reply DMX. May be txh1b can clarify his comments on 'Remainder Option'. Does it apply to anyone who previously had H1 only? or does it even apply to someone who had H1, then did change of status to H4, and wants to get back to H1?

[txh1b]

It applies to everyone that has not completely used the 6 years from their H1b.

[xtetic]

txh1b - Thanks for the prompt reply!

Do you happen to have a link to some article/law regarding the same? Especially about the fact that H4 who previously had H1, isn't counted against the cap again?

I have talked to my company's lawyer and he says no it's counted against the cap as it is a new H1.

[txh1b]

The link was provided by DMX. It is the law. Law does not explain a scenario as such. The law has to be applied to a scenario.