H1B “Remainder” Approvals, Even After Long Absence from U.S.23 Nov 2015
The Murthy Law Firm has received many inquiries from those seeking advice on returning to the United States in H1B status after having used only a portion of the six years of H1B status generally allowed. In a typical scenario, the individual obtains the H1B petition approval and, thereafter, holds that status for a few months or even a few years before leaving the U.S. The individual then wishes to return in H1B status, without again being subject to the H1B cap, by claiming the unused portion, or “remainder,” of the initial six years of H1B time. The Murthy Law Firm has been successful in arguing that the candidate remains exempt from the H1B cap, even if substantial time has lapsed since s/he last held H1B status.
Departing U.S. Prior to Six-Year Period
Subject to limited exceptions, in order to be eligible for H1B status, a beneficiary must first be counted against the annual H1B quota or cap. The demand for these limited cap numbers usually exceeds the supply, so petitions are selected each year in a lottery system. Once a person has been counted against the H1B cap, that individual generally is eligible to hold H1B status for up to six years.
Many H1B workers remain employed in the United States for a straight six-year period. However, it is not uncommon for an H1B beneficiary instead to use only a portion of this time before departing the U.S. for an indefinite period.
Remainder Option: USCIS Interpretation Provides H1B Options
A person who previously held H1B status may become eligible for a new six-year H1B period by departing the United States for at least one year before having a cap-subject H1B petition filed on his/her behalf. But, this typically means having to go through the H1B lottery again.
Under U.S. Citizenship and Immigration Services (USCIS) policy guidelines, however, a former H1B worker may be eligible for readmission to the United States in H1B status for the unused “remainder” time from the previous six-year period of admission. Given the regimented filing and start-date schedule of H1B lottery cases, not to mention the uncertainty of even being selected, using a remainder period of H1B time is frequently a more desirable option.
USCIS Issuing RFEs or Denials Based on Time Lapse
For many years, cases filed using the remainder option were processed routinely by the USCIS. More recently, however, the Murthy Law Firm has received numerous inquiries from prospective clients who have been issued requests for evidence (RFEs), and even denials, in cases where the beneficiary last held H1B status more than six years prior to the filing of a petition requesting the remainder time. This is based on a very narrow interpretation of the relevant legal provisions by the USCIS – and one that is inconsistent with the agency’s own remainder option policy memorandum.
In-Depth Research and Case-Specific Arguments Result in Approvals
While the H1B cap and the remainder option are not new concepts, Murthy Law Firm attorneys were prompted to reexamine the issue following the USCIS’s position shift in these cases. We are happy to report that Murthy Law Firm attorneys have been successful in overcoming RFEs and related challenges in numerous H1B “remainder” cases, including in situations where the beneficiary last held H1B status six years or more in the past. This was only possible through careful research and analysis of the facts surrounding each case and arguments made to the USCIS based on the regulations pertaining to H1B cap numbers. The arguments we have made are technical and include a detailed analysis of the cap number regulations and the systems for handling the H1B quota. This is used in conjunction with case-specific details to demonstrate that the individual beneficiary in the case-at-hand is eligible.
While the hurdles presented in H1B remainder cases are a relatively recent phenomenon, the Murthy Law Firm has long had to contend with shifting immigration policies and practices by the USCIS and other government entities. Staying informed of current trends is a critical part of practicing law, as is a thorough understanding of the statutes, regulations, case law, and memos upon which such government actions are ostensibly based. This knowledge, combined with a detailed review of an individual client’s background and immigration history, can all be used to present the government with compelling legal arguments.
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