H1B Remainder Option is Not Second Bite at the Apple for Circumventing Six-Year Limit


In June 2015, the AAO issued a decision clarifying that an H1B worker electing to use the “H1B Remainder Option” may not also seek a new six-year period of authorized admission unless eligibility for such benefit has been established. In the instant case, the beneficiary had previously been granted H1B status but was outside the United States from 2011 to 2013. In January 2013, his employer filed a petition to request that he be admitted in H1B status for the remainder of his initial six-year period of authorized stay. USCIS approved this request and beneficiary was admitted in H1B status until June 30, 2014. In April 2014, petitioner filed an H1B cap subject H1B petition requesting that the beneficiary be granted a new six-year period of authorized stay beginning October 1, 2014 to September 30, 2017.

USCIS denied the cap subject petition stating that “[a]n alien who was previously admitted to the United States in H1B status and has remained outside the United States for 1 year or more, but did not exhaust his or her entire 6-year period of admission, may elect to: (1) seek admission as a “new” H-1B alien, be subject to the cap unless he or she qualifies for an exemption, and begin a new 6-year admission period, OR (2) be readmitted for the “remainder” of the initial 6-year period without being subject to the H-1B cap if previously counted. “

AAO confirmed that once the choice has been made to recapture, the beneficiary may not then seek a new six-year period of authorized admission where the beneficiary was present in the United States in H1B status for the year immediately prior to the filing of the new petition. Here, the beneficiary’s admission in H1B status in 2013 to recapture time interrupted his residence and physical presence outside the United States for the immediate prior year, which precluded him from being eligible for a new 6-year admission period of H1B.

Reprinted with permission.

About The Author

Cheryl E. Kilborn

Cheryl E. Kilborn,is an immigration attorney with Latimer LeVay Fyock LLC, a multi practice firm that provides corporate mergers and acquisitions; business immigration; negotiation and drafting of complex contracts and agreements; choice of and creation of entity; sophisticated capital raises and other financial transactions; complex and creative real estate transactions; wealth, tax and estate planning; and a wide variety of business and commercial litigation.

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