H1b remainder option question on eligibility

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?

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.

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?

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.

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?

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.

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



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 ?

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.

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 ?