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I have specific query regarding interpretation of the below snippet
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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.3
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 UnitedStates 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 ยงยง 214(g)(1) and (g)(5).
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My I-797 dates and my Entry and Exit dates in US are listed below -
I-797 Dates Start Date End Date
Initial Employer1 03/30/2004 07/22/2005
Extn1 Employer1 07/23/2005 05/26/2008
Extn2 Employer1 05/21/2008 04/28/2011
Change to Employer2 09/15/2010 10/11/2011
Entry in US Exit from US
H1B Status 03/15/2005 03/15/2007 Employer1
H1B Status 04/13/2008 04/23/2009 Employer1
H1B Status 05/10/2009 10/01/2010 Employer1
H1B Status 10/19/2010 01/16/2011 Employer2
H1B Status 01/25/2011 05/26/2011 Employer2
H1B Status 05/31/2011 -- Employer2
In 2008, I came into US in Apr 2008 with H1/Visa valid till May 2008. My employer filed for Extension in May 2008 and it was approved in May 2008; but in I-129 Supplement Part C, my employer could not claim exemption from Cap as none of the conditions applied to me as I was out of the country for over a year.
My question is
1. USCIS "generally" treats extensions as Cap Exempt. Are there any conditions when this "generally" does not apply? Does USCIS use I-129 Supplement Part C to determine Cap Exemption? If yes, was my extension in May 2008 treated as Cap Exempt or not?
2. My May 2008 Extension has a start date that is not in sync with the end date of my previous petition. Does this suggest that it was treated as "new" instead of "remainder"?
I am wondering if my six year limit will be reached in May 2012 or it got reset in 2008 giving me time until 2014. I am currently applying for one more extension though.
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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.3
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 UnitedStates 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 ยงยง 214(g)(1) and (g)(5).
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My I-797 dates and my Entry and Exit dates in US are listed below -
I-797 Dates Start Date End Date
Initial Employer1 03/30/2004 07/22/2005
Extn1 Employer1 07/23/2005 05/26/2008
Extn2 Employer1 05/21/2008 04/28/2011
Change to Employer2 09/15/2010 10/11/2011
Entry in US Exit from US
H1B Status 03/15/2005 03/15/2007 Employer1
H1B Status 04/13/2008 04/23/2009 Employer1
H1B Status 05/10/2009 10/01/2010 Employer1
H1B Status 10/19/2010 01/16/2011 Employer2
H1B Status 01/25/2011 05/26/2011 Employer2
H1B Status 05/31/2011 -- Employer2
In 2008, I came into US in Apr 2008 with H1/Visa valid till May 2008. My employer filed for Extension in May 2008 and it was approved in May 2008; but in I-129 Supplement Part C, my employer could not claim exemption from Cap as none of the conditions applied to me as I was out of the country for over a year.
My question is
1. USCIS "generally" treats extensions as Cap Exempt. Are there any conditions when this "generally" does not apply? Does USCIS use I-129 Supplement Part C to determine Cap Exemption? If yes, was my extension in May 2008 treated as Cap Exempt or not?
2. My May 2008 Extension has a start date that is not in sync with the end date of my previous petition. Does this suggest that it was treated as "new" instead of "remainder"?
I am wondering if my six year limit will be reached in May 2012 or it got reset in 2008 giving me time until 2014. I am currently applying for one more extension though.
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