Last Year's Rule Changes to Keep in Mind, Part 2: H-1B "Remainder Option"

Previously, any H-1B employee who was outside the U.S. for a consecutive one-year period was considered to have reset their H-1B eligibility period back to a full six years. However, in resetting their eligibility, they also then became subject to the H-1B cap. If they sought to return to the U.S. in H-1B status, they would only be able to do so if they were coming at a time when the H-1B cap had not yet been exhausted.

Under a new USCIS policy, an H-1B employee outside the U.S. for more than a year now has the option to recapture any unused H-1B time and re-enter without being subject to the H-1B cap.

EXAMPLE: An employee spends four years in the U.S. in H-1B status and is then is assigned outside the U.S. for two years. This employee now has two options to return to the U.S. in H-1B status:

(1) Re-enter the U.S. with a full six years of H-1B eligibility, but he/she will be subject to the H-1B cap

- OR -

(2) Re-enter the U.S. for the remaining two years of his/her unused eligibility period and not be subject to the cap. Previously, only Option 1 was available.

So, the moral of the story here is that all overseas H-1B candidates may not necessarily be subject to the H-1B Cap. If they held H-1B status previously, they may be able to come back to the U.S. in H-1B status without being subject to the H-1B Cap.