I’ve Already Been Counted Against the H-1B Cap, So I’m Not Subject Again, Right?

Were you counted against the H-1B cap more than six years ago?

Since the H-1B cap was met so quickly this year, we are busy helping many clients and prospective clients think about alternative ways to meet their immigration goals. Some foreign nationals have already been counted again the H-1B cap, and are eager to file for H-1B status again, without being counted against the cap. This is a great solution for some people, but it’s important to think through the issue carefully to avoid having the case denied by USCIS. Here are some key issues to consider:

As with so many issues in immigration law, there are various sources of “official” information, and not all of that information is consistent. For example, for this particular issue:

The statute (Immigration and Nationality Act) at INA 214(g)(7) says that any foreign national “who has already been counted, within the 6 years prior to the approval of a petition…toward the numerical limitation…shall not again be counted toward those limitation unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.”

That is, the statute clearly says that a person who was counted against the cap within the past six years will not be counted again (unless that person would be eligible for a full six years of H-1B status – for example, if they had spent a year or more outside the US).

Then we have a USCIS memo dated 12/5/2006 from Michael Aytes, which provides guidance on decoupling H-1B and H-4 time, and L-1 and L-2 time (time spent in H-4 or L-2 does not count against the maximum amount of time permitted for H-1B and L-1 status). This memo also provides guidance on post-sixth year H-1B extensions and on options for the foreign national who has not used up all six years in H-1B status, but who have been outside the U.S. for more than one year (commonly referred to as the “remainder option”).

This memo says that if a foreign national was counted against the H-1B cap and spent time in the U.S. in H-1B status, and then left the U.S. and wants to return in H-1B status, that foreign national has two options:

a) If the foreign national spent more than one year outside the US, the foreign national can chose to file an H-1B petition that is counted against the H-1B cap, and will be eligible for a fresh set of six years in H-1B status (remember you can only request up to three years at a time), or

b) The foreign national can choose to not be counted against the cap, and instead use the “remainder” time, or whatever amount of time the foreign national had left of the six year maximum in H-1B status (again, you can only request up to three years at once).

However, the memo then goes on to give an example in which the foreign national was in the U.S. in H-1B status from 1/1/1999 - 12/31/2004, and then spent all of 2005 outside the US, and then wishes to re-enter the U.S. in January of 2006. The memo says that person can either chose to be counted against the cap and get a new six years, or the person can choose to not be subject to the cap, and use the remaining time that he has left of the six years. But in this example, it would seem that he was first counted against the cap in January 1999 or before as that’s when his H-1B status started. So in this example, the foreign national was not counted against the cap within the past six years, as the statute says. But yet the memo suggests in this example that it’s okay to file and not be counted against the cap, even if you were counted more than six years ago.

Finally, in practice, attorneys across the U.S. have reported that the Service is issuing Requests for Evidence and denying these cases, saying that the foreign national must have been counted against the cap in the past 6 years, per the statute.

Of course each case is different and must be discussed in detail with an experienced immigration attorney. However, the statute and the current trend at USCIS suggest that the safest route is to file against the cap if you were first counted against the cap more than six years ago.

A few other key issues to consider if you are thinking of using remainder time:

  1. Make sure you were actually counted against the cap when you think you were. That is, if you worked for an institution that was cap-exempt, such as a university, before you would not have been counted against the cap at all previously. If you are now going to work for an organization that is subject to the cap, you cannot claim you are not subject to the cap just because you filed an H-1B petition within the past six years.
  2. If you are not currently in H-1B status (either in another status in the U.S. or outside the US), you must have the H-1B petition approved before you start working in H-1B status in the US.
  3. Likewise, if you are outside the US, you must have the H-1B petition approved before you re-enter the US. Even if you still have a valid H-1B visa, you must have the approved petition to show the officer at the port of entry, and that petition must be for the employer for whom you intend to work.

As outlined above, there are several key issues to consider when thinking of using remainder time to avoid filing against the cap again. However, with some careful planning, many people are able to successfully file this way.

Do you need assistance with an H-1B filing or other employment-based or family-based immigration matter? Contact us today to see how we can help! 804-396-3412 or info@sumnerimmigration.com. We look forward to hearing from you!