H1b remainder option question on eligibility

USA H1B Visa
1

I had an H1b petition from OCt 2005 - Apr 2008 and I spent less than a year on that visa in the US.

So my question is can a new employer file a cap exempt petition under the remainder option n my behalf ?

I have seen two conflicting opinions in this forum on this

One says since it is more than 6 years since the petition was file (OCt 2005 + 6 years) , I am not eligible, some say it is based on the date you have left the country , while some say there is no such rule at all. The remainder option could be claimed anytime.

Whats the correct view , so that I could decide on something?

2

Actually there is the 6 year rule, but USCIS may be leniant about it. Yours misses out by around 1-2 years.

Your employer can try to get the cap-exempt petition based on your previous approval.

3

Thanks Saurabh. But what if the USCIS decides that is not a cap-exempt petition . All the money in filing the petition would be lost right?

4

You can consult an attorney and get their opinion. They will be able to tell you w/ more probability whether it will go through or not.

5

I have got the opinion of few attorney who claim that the remainder option can be used if the person was in h1b status within the last 6 yrs but they have not said what is meant by being in h1b status…

What is meant by being in h1b status?

I was in the US from Oct 06-July 07, so was I within h1b status in the last 6 yrs?

6

It is my understanding that remainder option can be used if the person got H-1 approved in past 6 years. So if the new petition needs to be filed in 2013, then the petition should have been approved post 2007.

However, I have also heard that USCIS may be lenient about the 6 year rule, and so it may still be filed for border-line cases. If that doesn’t work out, you always have the option of going through the cap and getting 6 new years of H-1.

7

Hello,
There is no 6 year rule.my h1b was initially approved in 2007.I was in US for 9 months between 2008 tand 2009.Now my company applied under remainder option and my petition got approved in early 2015 for the remaining period.

Please refer to this great article
http://www.businessimmigrationblog.com/h-1b-remainder-time-an-option-to-avoid-the-cap/

http://www.businessimmigrationblog.com/h-1b-remainder-time-an-option-to-avoid-the-cap/

8

Hi PSR,

Thanks your response was very helpful. My situation is similar to yours, and thinking abt using the remainder option. Can you clarify a cpl of things ?

  1. Did you try premium processing given the grey area ? Or did you go the usual route ?

  2. Did you submit any proof (entry/exit dates) at the time of petition ?

  3. Was any RFE recvd asking you to justify use of remainder option ?

9

1.Premium Processing. USCIS Approved within 4 working days. Applied from India.
2.All current and previous passport pages showing entry and exit were presented
3.No RFE. I think lawyer did a good job showing all the entry and exit dates to claim remainder time

Go for it. Remainder option is a great option to avoid cap.Also my petitioner is a well known reputed employer.

10

I have similar situation I have approved petition from 2007 , was valid from 2007 to 2010 .

I want to apply under cap exempt category , can you please help me with the attorney you consultant with ?