Time-Related Exemptions From the H1B Visa Cap

While the best known H1B visa cap exemptions are for educational or research positions as we discussed in a previous article, there are a few other ways to avoid the 65,000 visa cap each year (plus 20,000 for Master’s degree or higher applicants).

The following exemptions all relate to the normal six-year limit for an H1B visa.  The visa is valid upon approval for three years, and commonly extended for an additional three years, to reach the six-year total time limit.

The Default Rule: Six Year Maximum and then One Year Outside the US

The default rule for H1B visas is when your visa expires after six years, you must leave the US and stay outside the country for one year (365 days).  After that time you can apply for a new H1B.  

However, there are exceptions to this rule, and ways to work around it to extend your current visa.  A good way to think about these exemptions is that the H1B visa has a stopwatch type function.  When you stop working or leave the US, the H1B watch stops, and then re-starts when you find a new job.  The time that counts is the time that elapses while actually working under the H1B visa.

Exceptions to the Rule: You Still Have Time Left On the H1B Visa Stopwatch

If you were granted an H1B visa in the past six years (and then stopped working) you do not have to compete in the lottery again to fall within the cap number.   The reason is that you met the cap previously and won’t need to do it again within the six-year time limit from the date of the initial H1B.

Another exemption is if you are back in your home country and are applying for a new job from abroad.  It is possible to reclaim the remaining portion of a previous H1B, up to the six-year limitation.  So, if you worked for two years on the first H1B, you can use the remaining four years of eligibility for the new position and petition.

You may also use any time spent outside of the US while on an H1B, for example on holiday or maternity leave.  So, if you were gone for two months per year for six years, then you would have an additional 12 months to use on your H1B.

There are ways to extend beyond the six year H1B limitation if you have exhausted these methods, and we will explore those in a future post.  If you have questions about whether you can still use your H1B visa for a new job, you can ask an attorney.

• April 24th, 2016
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