It’s common knowledge that a current H1B holder can transfer to another employer within the US during the six-year H1B period without being subject to the 65,000 general + 20,000 masters degree cap again. I’ve been getting a lot of questions lately about what happens when an H1B holder leaves the US after working on an H1B and then later receives another job offer in the US. Is this person subject to the cap if their new employer wants to sponsor them for an H1B?
The answer depends both on how long the H1B holder worked on the H1B before leaving, and how long she has been outside of the US at the time she seeks to apply again. A person granted H1B status may work in that status for a maximum of six years. After working for a solid six years, the H1B holder must remain outside of the US for a full year before being able to apply for another H1B for a fresh six years. When she does reapply, she will be subject to the cap. On the other hand, a person who had an H1B but worked for fewer than six years may be able to file a new petition without being subject to the cap, even if she has subsequently lived outside of the US for a length of time.
To calculate how much time you used from your initial six years, add up the total amount of time you spent 1) physically present in the US, 2) while in H1B or L1 status. For example, if you worked under an H1B for five years, but spent one month every year in your home country for vacation, and one month every year traveling abroad for business, the amount of H1B time you have already used from your six year allotment is 5 years of work minus 5 months of vacation minus 5 months of business travel = 4 years and 2 months. You would therefore have a total of 1 year and 10 months of H1B time left to use before being subject to the cap again.
I worked on the H1B for a full 6 years: A person in this situation must leave the US and stay abroad for a full year before reapplying for a new H1B. When she does reapply, she will be subject to the cap and eligible for another full six years.
I previously worked on the H1B for under 6 years and have been back in my home country for less than a year: A person in this situation will be exempt from the cap. She may file a new petition at any time during the year, and may do so without first returning to the US. She will only be eligible for the remainder of time left from her original six year period, however. If, for instance, she calculates that she originally spent a total of two years working on the H1B before returning home, she will be eligible for a maximum of four years with her new employer.
I previously worked on the H1B for under 6 years and have been out of the US for more than one year but less than six years: A person in this situation has two options. She can file a cap-exempt petition at any time. If she chooses this option, however, she will only be eligible to receive the remainder of the time left over from the initial period. The second option is to subject herself to the cap, which has the advantage of making her eligible for a fresh six year period.
I previously worked on the H1B for under 6 years and have been out of the US for more than six years: Unfortunately in this situation it is necessary to apply under the April cap. Cap-exempt petitions to reclaim unused time are only valid within 6 years of being “counted against the cap,” which USCIS seems to interpret to mean within 6 years of last being in the US in H1b status. If you have had H1b status in the past and have unused time you would like to try to reclaim, it is in your interest to make every effort to get a cap-exempt petition filed on your behalf within 6 years of the day you left your prior H1b job.
As always, it is impossible to cover all of the nuances of cap-exempt H1B petitions in a single blog post, and you should not attempt to file a cap-exempt petition without consulting an attorney for an analysis of your specific situation. If you would like to discuss your situation in detail, feel free to send me a message, or schedule a phone or skype consultation with me.