Questions: I had H-1B status from June 2006 to August 2008, and then departed the United States for two years. I returned as an F-1 student and am now working on OPT. My employer wants to sponsor me for an H-1B, and I was wondering if my new H-1B petition would be cap subject? Do I have a fresh six years? If not, how much time do I have left?
Answers: Leaving employment and departing from the United States for one year or more does not require the foreign national to obtain a new visa number, if the full six years have not been used up. However, you must elect to use the old H-1B number, or file for a new one. In other words, you have a choice. You can file a cap exempt H-1B now, with approximately four years of H-1B time left (since you have already used approximately two years); or altneratively, if you want a full six years, you would have to wait until April 1 to file a cap subject H-1B under next year's cap (with a October 1, 2011 start date).
Guidelines for your situation are found in a 2006 USCIS policy memorandum. Please find a citation to the memo and the key excerpts after the jump.
Citation:
USCIS Memorandum, M. Aytes, “guidance on determining periods of admission for aliens previously in H-4 or L-2 status; aliens applying for additional periods of admission beyond the H-1B six year maximum; and ALIENS WHO HAVE NOT EXHAUSTED THE SIX YEAR MAXIUM BUT WHO HAVE BEEN ABSENT FROM THE UNITED STATES FOR OVER ONE YEAR”, (Dec. 5, 2006), published on AILA InfoNet at Doc. No. 06122063 (posted Dec. 20, 2006).
Key Excerpts:
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. 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. 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.
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).
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, I-797 Approval notices and/or H-1B visa stamps.