How To Calculate H1b 6 Year Limit

The need for H1B visas in Us continue to be at its summit with H1B lottery in the last few years. USCIS introduced New H1B Registration Rule from FY 2021 season to reduce costs and streamline operations. In this context of high demand for H1Bs, being counted towards H1B cap in the past has get more and more than of import, if yous want to work in US.

In the past, there was a USCIS regulation to recapture unused time that said that you were considered every bit cap exempt, simply if you accept filed for H1B in the past six years. This inverse in 2017 when the new rules and clarification by USCIS came into effect with. We will cover the details of old Rule that said the half-dozen years limit and new clarification by USCIS as per Jan 2017 memo with official references.

Background : H1B 6 years Limit

In general, you can piece of work in US on H1B upwards to 6 years. USCIS usually gives H1B for 3 years and then you tin can apply for H1B extension to go three more years. The general rule is that, if you not used upward whatever of that 6 years on H1B, you can utilize for H1B transfer or extension as cap exempt (not applying in H1B lottery once again) to utilize that 6 years limit.

Also, your time towards that half dozen years limit on H1B is counted only if you lot are in the US and worked on H1B visa status. Merely getting H1B approving does not count towards using of the vi years…this is for cases, when you lot are outside of The states and have non traveled to US.

Previous Rule before Jan 2017 – H1B remainder time recapture

The previous dominion to recapture residue unused time of half-dozen years of H1B time said that, you were considered cap exempt to recapture unused catamenia of H1B, only if you use for H1B before 6 years from the original H1B blessing date. It was non very clear what happens if y'all do not file within half dozen years.  Below is a reference of the official rule from INA department 214(1000)(seven) in one of the field guidance memos of USCIS from 2006. Run across beneath screenshots. Check Official USCIS 2006 Memo

Below is the screenshot of the bodily rule in Immigration and Nationality Human action (INA) section 214(g)(7). It is the aforementioned that yous meet in higher up screenshot, but beneath is the actual INA source that talks nigh the regulation. As it was non clear, it was interpreted that you can only apply inside 6 years to exist eligible for recapturing the unused H1B.  Check Official INA 214(m)(7) Rule

Equally this was not fully clear, in late 2016 it was raised in comments as function of the regulation "Retention of Immigrant Workers, Program Improvements for High-Skilled Nonimmigrant Workers". USCIS clarified the same in their response when the final rule was published for the same and updated the rule.

Current rule to Recapture H1B Unused time

The rule to recapture unused H1B fourth dimension of 6 years was updated in 2017 to provide more than clarity and it says that "in that location is no time limitation on recapturing the remainder of the initial vi-year period of H-1B access under INA 214(g)(iv)." What it means is that if anyone has applied for H1B in previous years and counted towards H1B cap, they can re-utilise for H1B equally cap exempt petition, with USCIS, anytime to recapture their unused initial H1B time that is less than half-dozen years.  There is no fourth dimension restriction that they should apply within vi years from the initial H1B approval fourth dimension anymore to recapture or use the balance of H1B unused time.  Below paradigm articulates the same in a timeline using an example.

Below is the official rule change screenshot from federal register. Check Official Federal Register Dominion . The below image from Federal Register is the summary of the rule change.

Below epitome is from same Federal Annals rule that is the bodily description of the comments by USCIS in the final rule publication.

How to recapture H1B Unused Time, Proofs ?

Every bit the above final rule was published, it was updated in the standard code of federal regulations of H1B at 8 CFR 214.ii(h)(13)(iii)(C) and beneath screenshot shows the actual text, where it tells that the remaining time can be recaptured in a subsequent H1B petition at anytime. To avail the benefit, it is up to the casher or the H1B holder trying to recapture the time to provide all relevant documentation back up the same. Official reference at : 8 CFR 214.two(h)(xiii)(iii)(C)

Documents Checklist to recapture unused time of H1B of 6 years

• Copies of Stamps in Passport given at Port of Entry,
• Copies of Stamps in passport related to land where you live
• Arrival Departure Records ( I-94 Cards ) or Electronic I-94 Cards
• Airline Tickets, Boarding Passes
• Chart indicating the times spent outside of US and documentary show for the same.

What has been your experience on recapturing the remainder of Unused H1B period of 6 years ? Did you get through any such situation ? Share your thoughts and experiences.

Source: https://redbus2us.com/apply-h1b-after-6-years-to-recapture-unused-time-uscis-rule/

Share this post