H1B reuse remainder period

[bizzysurfer]

I was on H1B from April 2014 till Mar 2017. From Mar 2017 till today I am in India. Now my employer is ready to file H1B petition to reuse my remainder time. The problem here is they are saying that I can stay only till Apr 2020 ( 6 year max from April 2014) but shouldn't it be for period (6 years - period from April 2014 to Mar 2017) which is around 3 years as I only stayed in US for 3 years.

[JoeF]

Yes, you can get the 3 year remainder time.

[pontevecchio]

Should you be working for an employer who does not seem to have a clue about the H1 duration allowed? You are entitled to 3 years in H1 status as the remainder option and your employer should be filing for three years.

[bizzysurfer]

1 hour ago, pontevecchio said:

Should you be working for an employer who does not seem to have a clue about the H1 duration allowed? You are entitled to 3 years in H1 status as the remainder option and your employer should be filing for three years.

@pontevecchio Actually the immigration attorney is outsourced, do you have any memo/document from USCIS that I can quote to them. All the official document from USCIS only mention recapture of time during H1B validity, I did not find any document that mentions that I can reuse the time when I was not on H1B.

[JoeF]

If you are out of the US you are by definition not on H1. So, recapture means time you weren't on H1. Since the maximum time in H1 status, i.e., in the US, is 6 years, and any time abroad is not counted, you have 3 years of the allowed 6.

Every immigration lawyer worth his or her money knows that.

[pontevecchio]

"December 5, 2006 USCIS memo by Michael Aytes " should help. In your case, the only way to convince the company is to have a lawyer speak on your behalf.

[bizzysurfer]

Finally they reviewed my case after I quoted text from the above memo and agreed that I am eligible for more than 3 years on H1B. They are asking me to enter the US on approved petition and then they will file for extension.

[Jameel]

On 5/23/2019 at 12:36 AM, JoeF said:

If you are out of the US you are by definition not on H1. So, recapture means time you weren't on H1. Since the maximum time in H1 status, i.e., in the US, is 6 years, and any time abroad is not counted, you have 3 years of the allowed 6.

Every immigration lawyer worth his or her money knows that.

Hi JoeF, I have a question here. Is there any time limit? Means, my initial H1B petition was approved in 2013 and from first port of entry in USA was in Nov 2014. I stayed in USA for 4 years till Dec 2018 and returned back to India in Dec 2018. If I wanted to use my remaining 2 years in future, is there any time limit ?

Example - Will I be eligible for Cap EXEMPT for using the remaining 2 years in 2023 also ? Please advise.