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Hi, I have a question regarding the "claiming unused H1B time". I copied the text at the end of this message which explains the rules on this situation.
I was in H1B visa status, working full time in the US until December 2007. My stamp expired in June 2008. Since mid 2008 I have traveled 2/3 times a year every year after that to the US on B visitor visa, so I never stayed literally for 1 full continuous year outside of the US.
My question is: Do I have a chance of using that extra remaining time in my H1B this year (instead of having to wait for a new h1b with start date in October)?, I was hoping one of the following applies:
a) the 1 year period doesn't need to be consecutive, I definitely have 365 days out of the US since Dec 2007
b) the 1 year period refers only to work visas (H1, L1)
Thanks in advance for your help!
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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 §§ 214(g)(1) and (g)(5).
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I was in H1B visa status, working full time in the US until December 2007. My stamp expired in June 2008. Since mid 2008 I have traveled 2/3 times a year every year after that to the US on B visitor visa, so I never stayed literally for 1 full continuous year outside of the US.
My question is: Do I have a chance of using that extra remaining time in my H1B this year (instead of having to wait for a new h1b with start date in October)?, I was hoping one of the following applies:
a) the 1 year period doesn't need to be consecutive, I definitely have 365 days out of the US since Dec 2007
b) the 1 year period refers only to work visas (H1, L1)
Thanks in advance for your help!
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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 §§ 214(g)(1) and (g)(5).
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