H1-B clock reset + cap

T

Tamas.s

Registered Users (C)
I currently possess an H1-B valid till March of 2005. It was issued in March of 2002. I left the US in December of 2002 and spent
almost 2 years outside the US. I decided to move back to the US this year and will work for my former employer. My visa allows me to do that.
My question is whether I am exempt from the H1-B cap when I apply for extension.
The answer should be Yes, but is it if I explain that I spent more than one year outside the US and wants to "reset" my 6 year H1-B clock? Thanks for your reply in advance.
 
Thanks for the quick reply.
I had my first H1-B approved in September of 2000 so I assume the clock reset does matter. If I won't reset it I could stay till September of 2006 on H1-B status. Fortunately I am in the I-140 stage (CP) with RD December 24th, 2003. Do you suggest to mention the years spent outside the US in the I-129?
 
clock reset matters to the number of years u get not towards the cap, so to not fall under the cap u will have to mention ur first H1. and to reset the clock u wil mention the time spent abroad
 
The law says:
AC21 Section 103 and Section 114--Exemptions from the H-1B FY Cap
As of October 17, 2000, the following beneficiaries of approved H-1B petitions are exempt from the H-1B FY cap:
(a) beneficiaries who are in J-1 nonimmigrant status in order to receive graduate medical education or training pursuant to Immigration and Nationality Act(INA) Section 212(e)(iii), and who have obtained a waiver of the 2-year home residency requirement under the provisions of the INA first Section 214(1)(1)(B)(commonly referred to as the Conrad State 20 program); or
(b) beneficiaries who are employed at, or who have received an offer of employment at, an institution of higher education (as defined in the Higher Education Act of 1965 Section 101(a), 20 USC Section 1001(a)), or a related or affiliated non-profit entity; or
(c) beneficiaries who are employed by, or who have received an offer of employment from, a non-profit research organization; or
(d) beneficiaries who are employed by, or who have received an offer of employment from, a governmental research organization; or
(e) beneficiaries who are currently maintaining, or who have held within the last 6 years, H-1B status, and are ineligible for another full six year stay as an H-1B; or
(f) beneficiaries who have been counted once toward the numberical limit, and are the beneficiary of multiple petitions.

Could anybody help me to decide that the highlighted part would apply in my case? Thanks.
 
Tamas.s said:
The law says:
AC21 Section 103 and Section 114--Exemptions from the H-1B FY Cap
As of October 17, 2000, the following beneficiaries of approved H-1B petitions are exempt from the H-1B FY cap:
(a) beneficiaries who are in J-1 nonimmigrant status in order to receive graduate medical education or training pursuant to Immigration and Nationality Act(INA) Section 212(e)(iii), and who have obtained a waiver of the 2-year home residency requirement under the provisions of the INA first Section 214(1)(1)(B)(commonly referred to as the Conrad State 20 program); or
(b) beneficiaries who are employed at, or who have received an offer of employment at, an institution of higher education (as defined in the Higher Education Act of 1965 Section 101(a), 20 USC Section 1001(a)), or a related or affiliated non-profit entity; or
(c) beneficiaries who are employed by, or who have received an offer of employment from, a non-profit research organization; or
(d) beneficiaries who are employed by, or who have received an offer of employment from, a governmental research organization; or
(e) beneficiaries who are currently maintaining, or who have held within the last 6 years, H-1B status, and are ineligible for another full six year stay as an H-1B; or
(f) beneficiaries who have been counted once toward the numberical limit, and are the beneficiary of multiple petitions.

Could anybody help me to decide that the highlighted part would apply in my case? Thanks.
Click to expand...

Exactly right. I think this language makes clear that you ARE subject to the H-1B visa cap since you are eligible for another six year stay as an H-1B.
 
What about if I file an H1-B extension on a regular way and specify the requested validity date on the I-129 right at the 6 year flag?
I don't think that any immigration officer would realize that I would be subject to the yearly cap... Of course they could find it out by checking my attached resume though...
Any opinion? My other option would be to change my CP to I-485 but in that case I would loose a lot of time....
 
My I-140 got approved on 09/17/2003. My H1-B is valid till March of 2005.
Would you take the risk and apply for H1-B extension and proceed with Consular Processing or change to I-485 to being safe?
Any comment would be greatly appreciated.
 
Tamas
I'm kinda in the same boat. I-140 approved and H1 expiring. I can't advise you, an expert lawyer can weigh your risks better, but I decided to take the risk. I went with consular processing.

But from what I read on these forums, I have a question about the 6 year clock.
I was on F1 practical training when my H1B was approved March 1999. I went to India and entered for the first time on H1B in Feb 2000. Does that mean my 6-year clock started only in Feb 2000?
 
I have a quick question, My friend got her h1 in dec 2000 , but she did not use it , if she wants to have h1 now, does she have to apply for new h1 or the old employer can reinstate her h1, this is a very confusing situation.

Regards
Jhonny
 
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