H-1B "Remainder" Time and "new" H1-B

[Vikas Shah]

USCIS memo dated December 5, 2006 on the subject : "Guidance on Determining Periods of Admission for Aliens....Who Have Not Exhausted the Six-Year Maximum But Who Have

Been Absent from the United States for Over One Year." offers 2 options to such aliens to elect from viz., ("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.

My question is if the alien had exercised the option "2" seeking to be admitted as a “new” H-1B alien subject to the H-1B cap., then can this alien now also exercise option "1" after staying 1 year outside US after completing the 6 years as a result of exercising option "2".

To me logically, had the alien first exercised option (1), the doors of option (2) don't close to him. So it sounds like, if the alien exercises the option (2) first, the doors of option (1) should still have remained open to him.

But I'm posting this here in the forum here to get the expert's opinion.

Thank you.

[Attorney_13]

In general, one cannot retroactively apply the option to be readmitted in H1B pursuant to the annual H1B quota. If one could have been eligibile to have done so, but did not, one would have to remain outside the US for one year in order to be counted under the quota.

Please consult with a qualified immigration attorney to discuss your case in detail and determine a customized course of action.