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  • H1 B

    I worked in US from 2000 to 2004 under H1 B and came back to india in 2005.
    If I apply for a new H1, does it comes into the H1 B cap. Please let me know.

    Thanks in advance.

  • #2
    If you have not used the 6 years of your previous H1b completely, you can use the remainder option to capture any time left.

    The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B QUOTA, individuals who spent one year outside of U.S. and did not exhaust entire six year term can CHOOSE to be re-admitted for “remainder” of initial six-year period without being subject to H-1B cap. The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006. The USCIS Memorandum stated:

    C. H-1B “Remainder” Option

    Section 214(g)(4) of INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides, in pertinent part, as follows:

    Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

    In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.

    8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien did not exhaust his or her maximum six-year period of admission.

    There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

    Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status. For example, an alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e. a total of one year. If the alien was previously counted toward the H-1B numerical limitations in relation to the time that has accrued against the six-year maximum period of admission, the alien would not be subject to the H-1B cap. If the alien was not previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien will be counted against the H-1B cap unless he or she is eligible for another exemption.

    In the alternative, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year. For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension. “New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5).

    Note: The burden of proof rests with the alien to show that he or she has been outside the United States for one year or more and is eligible for a new six-year period, or that he or she held H-1B status in the past and is eligible to apply for admission for the H-1B “remainder” time. Petitions should be submitted with documentary evidence of previous H-1B status such as Form I-94 arrival-departure records, I-797 Approval notices and/or H-1B visa stamps.

    I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

    Comment


    • #3
      H1

      Thank you so much.

      Comment


      • #4
        Clarify "at least a year"

        Hi txh1b,

        I left in 2006 to pursue my MBA in the UK. I was issued my H1-B in 2004, and thus have only used 2 of 6 years available to me.

        You mentioned to be exempt from the current quota, I would need to be outside the US for at least a year. Although I have been living in the UK since 2006, I have visited the US frequently - my girlfriend lives in the US (I do not require a visa to visit the US). In most cases I would visit every 6 months.

        When you mean "outside the US" for at least year, does that mean consecutive days, i.e. 365 days. Given your experience and knowledge, would I be exempt from the current quota should I choose to return to the US?

        Thanks for all the help!

        Best,
        Derek

        Comment


        • #5
          To use the "remainder" option (4 yr in your case), you need not live outside the U.S for year. You are good if you want to use the remainder time. You can apply any time and get the 4 years as long as you have the required proof.

          The one year live outside thingy is for people applying for a brandnew 6 year term.
          Check out H1 FAQs first!
          http://www.immihelp.com/visas/h1b/h1-visa-faq.html

          Comment


          • #6
            thanks!

            i have my old H1B documents, company termination documents, and a letter stating that I was enrolled in the school's two-year MBA program!

            looks like i am coasting!

            cheers,
            derek

            Comment


            • #7
              You a good to go! Go ahead and use the remainder option.

              I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

              Comment


              • #8
                Previous H1-B

                1. My wife had a H1 Visa which was issued in the year 2004 from Company A.
                She resigned from Company A in the year 2005 and joined someother company in India.

                2. She never used the H1 Visa.

                3. Now she is in US from June 2008 with H4 status. When she got her H4 visa her pervious H1 Visa was "Stamped" for "Cancelled without prejudice".

                4. Any idea whether she is eligible for "H1-B Remainder" option.
                Last edited by pathangi; 08-23-2008, 01:43 AM.

                Comment


                • #9
                  Originally posted by pathangi

                  4. Any idea whether she is eligible for "H1-B Remainder" option.
                  Regards,
                  Balaji
                  YES YES YES

                  Did you not read?
                  Check out H1 FAQs first!
                  http://www.immihelp.com/visas/h1b/h1-visa-faq.html

                  Comment


                  • #10
                    Old H1 approval re-use

                    I got my H1 approved in Oct 2004 and it was from Oct 2004 - Oct 2007. I used only 6 months of H1 and later went on TN (work visa for Canadian citizens) and remained in US working on TN for 4 years. Now even the earlier H1 approval duration is over, Can I apply for H1 with another employer using the old 2004 H1 quota cap or it has to be under new 2009 cap? Thanks in advance.

                    Comment


                    • #11
                      Thanks for all of your suggesstions My wife's petition was approved. We did that through Premium Processing. Both the H1 and COS approved same time.



                      1. My wife had a H1 Visa which was issued in the year 2004 from Company A.
                      She resigned from Company A in the year 2005 and joined someother company in India.

                      2. She never used the H1 Visa.

                      3. Now she is in US from June 2008 with H4 status. When she got her H4 visa her pervious H1 Visa was "Stamped" for "Cancelled without prejudice".

                      4. Any idea whether she is eligible for "H1-B Remainder" option.

                      Comment


                      • #12
                        H1B Transfer

                        According to the memo and the discussion here, I believe that I am qualified for applying the re-admission to use the remaining years for my previous H1B.

                        I had H1B approved from 2001 to 2003 and I only used for 1 year. I moved to Canada since 2002.

                        Can someone please let me know how to apply the "re-admission" of the H1B transfer? How long it will take?

                        Thank you.

                        Comment

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