6/17/2010

Many seem to misunderstand the function of the H-1B cap. The cap is an annual limit on the number of new H-1B workers. These new workers would be eligible for a maximum of six years in H-1B status, subject to certain exceptions allowing additional time.

There are many questions from individuals seeking a way to become eligible for more than six years of H-1B time. They usually are close to the end of their six-year H-1Bs and, erroneously, assume that it is possible to simply file another cap-subject case to acquire six more years of H-1B time. This is not correct. 

Generally, in order to be eligible for a full six years of additional H-1B time, it is necessary to leave the United States for one year. After that year, one becomes eligible for six more years, but must be counted against the numerical cap anew. 

In some cases, if the person has not used all six years in H-1B status before leaving, there could be an option to return for the unused "remainder" time, without becoming subject to the cap.

The other options for eligibility for more H-1B time require the filing of an employment-based permanent residence (Green Card) case at least 365 days earlier, or obtaining an I-140 immigrant petition approval when the priority dates are not current.