H1B Cap Exempt - Already Counted in H1B Cap more than 6 Yrs


rrkumars

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Dear Folks,

 

I know that there is a burning question in every body’s mind who had H1B in the past and who had not utilized their maximum admissible period of 6 years and want to know whether they are cap exempt or not. The below post explains the Aytes memo in detail regarding the H1B Remainder option eligibility.

 

Following is the Aytes memo

 

H-1B “Remainder” Time

USCIS officers shall comply with the following guidance regarding requests for time in H-1B status on the behalf of an alien who has not exhausted his or her H-1B maximum period of admission and who has been absent from the United States for longer than a year.

Section 214(g)(4) of the INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” Section 214(g)(7) of the INA 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 ©, 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 H-1 Recapture of Time Spent Outside the United States, AAO Adopted Decision 06-0001 (Sept. 2, 2005), 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.

The regulations at 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 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

·     seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

 

NOTE:

This new “remainder” policy does not affect an H-1B alien who was previously admitted to the United States, but who has not been absent from the United States for more than one year. Such an alien would not be eligible for a new six-year period of admission and therefore may only seek readmission based on time remaining against his or her initial six-year period of admission.

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.

Alternatively, 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 Sections 214(g)(1) and 214(g)(5) of the INA.

 

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, Form I-797 Approval notices and/or H-1B visa stamps .

 

If you go thru the Aytes memo

 

"Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, 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. "

 

Most of the attorneys who go thru the above para told us that if you are counted in the last 6 years only, you are eligible for H1B Remainder option.

 

What is the above para really interprets:

 

Once you are counted, you are counted with in the 6 year H1B cycle. That is the meaning of "counted within the 6 years" not mentioning that you should be counted in H1B cap in the last 6 years. This 6 year H1B cycle can be spread across many years till it ends.   

 

Also if you go thru the entire Aytes memo regarding the H1B remainder option, you see in only place "counted within the 6 years” is mentioned.

 

In other places it is mentioned as

"alien who was previously admitted to the United States in H-1B status"

"alien was previously counted toward the H-1B numerical limitations"  

“he or she held H-1B status in the past and is eligible to apply for admission for the H-1B remainder time”

there is no mention of 6 years in the above sentences. If they really want to make sure that those who are already counted in the last 6 years are only eligible for H1B Remainder option than they might put "Counted with in the 6 years" uniformly across all places in the memo.

 

 

Finally what's the Aytes memo trying to tell us is that

 

"If you are previously counted in the H1B Cap and you had not utilized the entire 6 years of H1B stay, You can file a cap exempt H1B petition at any time and eligible to reclaim the remaining period using H1B Remainder option. “

 

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  • 9 months later...

I have stamped H1B visa that was filed by some consultant in Year 2007. I never came on that visa and it was never utilized.

Visa issue Date : 27 Aug 2007
Visa Expiration Date : 31 Aug 2010

I was in USA in L1B from 2010 to 2013.

Would I qualify for a CAP Exempt application. Please suggest

when I checked below website it says no, I tried with my existing employer(MNC) as well and they are also not entertaining more than 6 years old visa.

http://www.*****************.com/***************

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I have stamped H1B visa that was filed by some consultant in Year 2007. I never came on that visa and it was never utilized.

Visa issue Date : 27 Aug 2007

Visa Expiration Date : 31 Aug 2010

I was in USA in L1B from 2010 to 2013.

Would I qualify for a CAP Exempt application. Please suggest

when I checked below website it says no, I tried with my existing employer(MNC) as well and they are also not entertaining more than 6 years old visa.

http://www.*****************.com/***************

Yes, you will be cap exempt. Contact Murthy law firm for confirmation.

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  • 4 years later...

I was on H1b until sep 2011 and have about year and half remaining on my H1b’s 6 years. Since 2011 I’ve been on F1 and currently in OPT stem extension. Also, after 2011, I have not spent one full year outside the US. Can I change my status my H1b and use the period remaining on my old H1b? I’m working full-time in US. Thanks!

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