H-1B under exempt when previous H-1B was approved more than 6 years ago.

(By Rahul Reddy & Rebecca Chen, Attorneys at Law)

Most H1-B visa holders are aware of the six-year limit that applies to H1-B visas, which may be renewed by staying outside the U.S. for at least 1 year and re-applying under the cap for a new H1-B visa. However, H1-B visa holders who have spent time outside the United States also have the option of “recapturing” their time spent outside the country. This option allows their H1-B visa to be extended by one day for every full day spent outside the U.S., up to the six-year limit. 

Alternatively, many people are eligible for more than one type of visa, and may switch between visa types during their stay in the U.S. One question these visa holders may have is how switching between visa types (for example, from H1-B to TN and back to H1-B) affects their visa eligibility duration. The answer to this question is that time spent inside the United States on any visa other than an H1-B does not count towards the H1-B six year maximum, and may be recaptured accordingly. According to Chapter 31.3(g)(9)(A) of the USCIS Adjudicator’s Field Manual, “only time spent in the United States as an H1-B counts towards the maximum.” (Emphasis added) Under this guidance, as well as that contained within the December 5, 2006 USCIS Guidance Memo by Associate Director Michael Aytes, a change of status from H1-B to another visa type interrupts the visa holder’s H1-B period of admission. Therefore, recapture of the time spent outside of H1-B status up to the six-year maximum is permitted. Beyond that, an approved I-140 would be required to extend H1-B status beyond the maximum in one-year increments as allowed by the American Competitiveness in the Twenty-First Century Act (“AC21”). However, because some visa classifications (such as TN) require proof of non-immigrant intent, be sure to speak to a qualified immigration attorney before pursuing a change in visa type. 

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.