Potential Impact on H-1B1 Cases if Trump is Reelected

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Since Election Day is coming up, in this blog post I am writing about 3 potential scenarios impacting H-1B1 cases if Trump is reelected. 

Potential Scenario #1 if Trump is Reelected:  Discontinuance of Interview Waiver Process

If Trump is reelected, it is very likely that the interview waiver process at the U.S. Embassy in Singapore will be discontinued.  I have written about the Interview Waiver process here.  You may recall that between 2017 and 2020, during the previous Trump presidential term, there was no interview waiver option available.  This will very likely be the scenario again if Trump is reelected. 

Potential Scenario #2 if Trump is Reelected:  Increase in Visa Appointment Wait Times

Since it is very likely that interview waivers will be discontinued during a second Trump presidency, the natural consequence would be that visa appointment wait times for an in-person H-1B1 visa interview will increase.  This is simply because, in the event of non-availability of interview waivers, more in-person interview appointment slots will understandably be taken up. 

Having said that, the US Embassy in Singapore has generally done a very good job in keeping things efficient.  As such, interview appointment wait times in Singapore might not increase too drastically even if Trump is reelected. 

Potential Scenario #3 if Trump is Reelected:  Increase in USCIS Issuance of RFEs and Processing Times (for USCIS I-129 petitions) 

This potential scenario applies to USCIS Processing of H-1B1 I-129 Petitions in the U.S.  Accordingly, this does not apply to H-1B1 visa applications done directly at the U.S. Embassy in Singapore where USCIS is not involved.  (I compare USCIS processing versus US Embassy processing in a previous blog post here).

During the previous Trump presidential term, there was a general uptick of Requests for Evidence (RFEs) sent out by USCIS for I-129 petitions involving H-1 cases.  Although an RFE does not automatically mean that USCIS will eventually deny a petition, an RFE generally stretches the overall processing time of a USCIS H-1B1 petition, especially since H-1B1 petitions with USCIS currently do not have premium processing (expedite) service available.  USCIS presently takes an average of about 2.5 months to process an H-1B1 I-129 petition -- this timeframe will be expanded if USCIS sends out an RFE.

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.

Updates on USCIS Processing of H-1B1 Petitions

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Below are two major updates regarding the USCIS Processing of H-1B1 Petitions in the U.S.  Note that these updates pertain only to I-129 petitions filed with USCIS.  In other words, these do not apply to H-1B1 visa applications done directly at the U.S. Embassy in Singapore where USCIS is not involved.  I compare USCIS processing versus US Embassy processing in a previous blog post here.

1. USCIS Online Filing Now Available

Firstly, as of April 1, 2024, USCIS allows H-1B1 employers to file H-1B1 I-129 petitions online using their MyUSCIS account at https://my.uscis.gov/.

Nevertheless, H-1B1 employers can still choose to utilize the traditional paper filing method with USCIS, which is totally fine.

To reiterate, we are talking about petitions filed with USCIS here.  If a Singaporean were to apply for an H-1B1 visa directly at the U.S. Embassy in Singapore, then there is no need to go through USCIS at all.

Note: the USCIS online filing system currently does NOT have the capability to process concurrent applications for H-4 dependents filed with the principal's H-1B1 petition.  For instance, in a situation where an H-1B1 extension of stay in the U.S. is sought via an I-129 petition AND an extension of status is also sought for an H-4 dependent (e.g. spouse) via a concurrent 539 application, an online filing would not be possible.  In such an instance, paper filing for the concurrent I-129 H-1B1 petition and I-539 H-4 application is the only option.  

2. New USCIS Filing Fees

Secondly, as of April 1, 2024, USCIS has effectively increased its filing fees for I-129 petitions filed by companies by having higher fees for larger companies and adding a new type of fee called the Asylum Program fee (to fund government costs associated with asylum processing even though I-129 petitions do not deal with asylum cases at all).  The new USCIS filing fees are summarized as follows.

For Companies:

For a company with 25 or less employees (including those employed by the company's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $300

USCIS ACWIA fee: $750

Total: $1510

For a company with over 25 employees (including those employed by the company's subsidiaries and affiliates)

USCIS I-129 filing fee: $780 (Paper filing) or $730 (Online filing)

USCIS Asylum Program fee: $600

USCIS ACWIA fee: $1500

Total: $2880 (Paper filing) or $2830 (Online filing)

Note:  Employees here refer to full-time equivalent employees (which in turn equals to the number of full-time employees plus the number of part-time employees aggregated to full-time equivalents). 

For Non-Profits:

For a Non-profit with 25 or less employees (including those employed by the Non-profit's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $0

USCIS ACWIA fee: $750

Total: $1210

For a Non-profit with over 25 employees (including those employed by the Non-profit's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $0

USCIS ACWIA fee: $1500

Total: $1960

Note:  Employees here refer to full-time equivalent employees (which in turn equals to the number of full-time employees plus the number of part-time employees aggregated to full-time equivalents). 

These USCIS filing fees only apply to petitions filed with USCIS.  If you were to apply for an H-1B1 visa directly at the U.S. Embassy in Singapore, you do NOT need to go through USCIS.

Accordingly, the USCIS fee adjustment imposed by USCIS (and how they are now structured in a potentially more confusing manner) is perhaps now another factor in favor of applying for an H-1B1 visa directly with the U.S. Embassy in Singapore. 

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.

The E-2 Visa for Singaporeans

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Because the H-1B1 visa is not suitable for Singaporeans wishing to run their own businesses in the U.S., I often end up suggesting the E-2 visa to them. 

I summarize the key requirements for an E-2 visa for Singaporeans below.

E-2 Visa for Singaporeans

Requirement 1. Treaty Country

Only citizens of treaty countries are eligible for an E-2 visa.  Because Singapore is an E-2 treaty country, Singaporean citizens are eligible for the E-2 visa.

Requirement 2. E-2 Applicant and E-2 Business must Have Nationality of the Treaty Country

This means that the E-2 applicant must have Singapore citizenship, and the E-2 Entity where the applicant will work at must be Singaporean-owned (must be at least 50% owned by non-green-card-holding Singaporean citizens; if the E-2 entity is owned by a parent entity, the parent entity must be at least 50% owned by non-green-card-holding Singaporean citizens).

Requirement 3. E-2 Applicant Must Have Invested or Be in Process of Investing

This means that the E-2 Applicant has placed funds into the E-2 entity which have been put "at risk".  "At risk" means that the investment funds have been irrevocably committed, for example:

- Advance payment for office rent already spent;

- Amount for purchase of equipment and inventory already spent;

- Putting funds into an escrow account when purchasing a business, because an E-2 applicant can choose to purchase an existing business instead of starting a business from scratch.

The rationale for the "at risk" component is that the US government wants to see that the Singaporean has put sufficient "skin in the game" and is really very serious about committing to this E-2 business, which is why they want the investment funds to be spent and not being passively left in the bank account. 

The source of the funds can come from the E-2 Applicant's capital assets or simply funds from his/her savings or gifts, or can also come from loans secured by personal assets, but it must not come from illegal activities.

Requirement 4. Commercial Enterprise Must be Real and Active

When this is a new enterprise, the US government wants to see that the enterprise will be a real and active commercial endeavor producing some service or goods if the E-2 visa is issued.  

Practically speaking, it behooves the Applicant to be able to show that the business has already started operating / transacting with customers or is very close to the start of actual operations, which would in turn serve to also help demonstrate that the Applicant has already put in sufficient "skin in the game" (see Requirement 3. above).

In fact, the U.S. Embassy in Singapore wants to see evidence that the enterprise is either currently running or will open its doors imminently (examples include: business license, lease agreement, utility bills, business bank statements, sales invoices, employment contracts with employees, proof of salaries and wages paid).

Because this requirement involves a "commercial" (for-profit) enterprise, a Singaporean cannot start a nonprofit using an E-2 visa.

Requirement 5. Investment Must be Substantial

This requirement addresses common questions on what constitutes a minimum investment amount for an E-2.  The short answer is that there is no magic number.  Having said that, in my opinion at-risk funds totaling less than $50,000 USD would generally be a signal to an adjudicator that there is insufficient "skin in the game".

This requirement can be met by showing that the amount of investment was sufficient in bringing the business to the point of it being operational; in other words, if your E-2 entity is already transacting with vendors and customers and is already fully operational, then you would have a good justification that your investment was "substantial."

Requirement 6. Enterprise Must be More Than Marginal

This simply means that the enterprise must be able to generate enough income for more than the E-2 applicant and their family.  

In my opinion this requirement can be met by the E-2 entity hiring U.S. employees since it would show that the enterprise has the present or future capacity to generate income for more than the Singaporean E-2 applicant.  

In addition, if this is a new enterprise, the U.S. Embassy in Singapore expects to see a business plan with a 5-year financial/income projection.

Requirement 7.  Develop and Direct the Enterprise (also see Requirement 7.a. below)

This means that the E-2 Applicant must be in a position to own and control the E-2 entity, for example:

- Owning 51% or more of the entity:  This clearly shows controlling ownership interest

- "Negative Control" arrangement involving two parties:  This means that an equal 50% / 50% ownership of the entity between two Singaporean parties (one or both of them being E-2 Applicant(s)), with both partners each retaining full management rights and responsibilities, could work.

In addition, it also helps that the E-2 entity already has subordinate employees, so that it can be shown that the E-2 applicant will "direct" the enterprise.  Adjudicators seem to take the view that, if there are no subordinate employees, there would be nobody in the enterprise to direct.

Requirement 7.a. Executive/Supervisory/Essential Employees

Not every Singaporean E-2 visa applicant needs to be the investor/owner of the E-2 entity.  A Singaporean citizen can also apply for an E-2 visa as an Executive/Supervisory/Essential Employee of a Singaporean E-2 entity which has met Requirements 1-6 above.

Executive/Supervisory E-2 employee - when evaluating whether this is indeed an executive or supervisory position, the adjudicator will look at the person's qualifications (education & experience), place in the organizational structure, duties, number and skill levels of the subordinate employees.  As such, practically speaking if there are zero or very few employees at the E-2 entity, it would be a very difficult E-2 Executive/Supervisory employee case.

Essential E-2 employee - when adjudicators assess whether the E-2 entity has a business need for a specific skillset and whether the E-2 applicant possesses these skills, they will consider factors such as (a) experience and training necessary to achieve the desired skills needed for the position; (b) the uniqueness of such skills; (c) the availability of US workers with such skills; (d) salary; (e) proven expertise of the applicant; and (f) the function of the job being offered at the E-2 entity.

Overall, the requirements are interrelated and may have a "domino effect" on each other.  For example, meeting Requirement 4. (Real and Active) helps to strengthen Requirement 3. (Invested or Process of Investing) and Requirement 5. (Investment is Substantial); Meeting Requirement 6. (More than Marginal) helps to strengthen Requirement 7. (Develop and Direct).   

Another observation I have is that, unfortunately, the E-2 requirements do not always comport with real life.  For example, it is understandable that businesses do not wish to hire employees or put in too much "skin in the game" at the start.  However, I believe the U.S. government perhaps wants to see a high degree of serious commitment by the Singaporean entrepreneur beyond that of a common businessperson before it would agree to grant an E-2 visa.

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.

U.S. Diversity Visa Lottery for FY 2025 Opening on October 4, 2023

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

For interested Singaporean citizens who are born in Singapore*, the Fiscal Year 2025 U.S. Diversity Visa Lottery opens on October 4, 2023.  

*Eligibility for entering the Green Card Lottery is based on country of birth and not citizenship, as discussed below.

H-1B1 and the DV Lottery

Some Singaporeans seeking an H-1B1 visa have asked if registering for the Diversity Visa Lottery (also known as the Green Card Lottery) would cause issues with their H-1B1 visa application due to the nonimmigrant intent nature of the H-1B1 visa.  

The answer is: No.  

Particularly, you may encounter the question on your online DS-160 visa application form that asks "Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?"  If the answer to this DS-160 question is Yes, it raises a red flag in an H-1B1 visa application because the filing of an immigrant petition with USCIS, such as an I-130 petition or an I-140 petition, generally contradicts the nonimmigrant intent nature of the H-1B1. 

However, the act of registering for the Green Card Lottery with the Department of State is NOT the filing of an immigrant petition with USCIS (and so the answer to the DS-160 question above would be NO if you had merely registered yourself in the DV Lottery program).  Therefore, it will generally not cause problems for your H-1B1 visa application.

Below is information about the Diversity Visa Lottery program.

What is the DV Lottery and Who Can Apply

The Diversity Visa program is a government lottery program for obtaining a green card; this program makes 50,000 immigrant visas available every year to applicants from countries with low rates of immigration to the U.S. and with specific education or work experience qualifications.

To be eligible for the Diversity Immigrant Visa Program, you must have been born in a country that sent less than 50,000 immigrants to the U.S. in the previous five years.  This includes being born in Singapore.  

For the FY 2025 program, people with the following countries of birth are NOT eligible** to apply due to high rates of immigration to the U.S.: 

Non-eligible countries:  Bangladesh, Brazil, Canada, China (including Hong Kong SAR, but Natives of Macau SAR and Taiwan are eligible), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Venezuela, Vietnam. 

**If your country of birth is not eligible, there are still two ways you could qualify: (i) if your spouse's country of birth is eligible, or (ii) if your parent's country of birth is eligible provided that neither of your parents was born in your country of birth or legally resident in your country of birth at the time of your birth.  

In addition to the country of birth requirement above, applicants must possess: (a) at least a high school diploma or its equivalent; or (b) two years of work experience in an occupation that requires at least two years of training or experience; the Department of State provides guidance on the educational and work experience requirements here.

When and How to Apply for the DV Lottery

The entry submission period for the FY2025 DV program is from 12pm (ET) on October 4, 2023, to 12pm (ET) on November 7, 2023.

Entries must be submitted online through the Department of State's website.  Online applications are free (although visa processing fees would apply if selected), and detailed instructions from the Department of State can be found here.

Disclaimer:  This blog post is for informational purposes only and should not be construed as legal advice.

Updates on H-1B1 Consular Processing in Singapore

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

I am writing to provide two updates regarding H-1B1 consular processing in Singapore.

1.  MRV Fees for H-1B1 to Increase from $190 USD to $205 USD effective June 17, 2023

The MRV (Machine Readable Visa) application fee for the H-1B1 visa has traditionally been $190 USD per applicant.  As of June 17, 2023 (slightly delayed from the initial effective date of May 30, 2023), this will be increased slightly to $205 USD.

Therefore, do not be surprised by the slightly higher fee if you encounter it from June 17, 2023 onwards.

2.  Interview Waiver Process - Please use the Aramex Office in CHINATOWN for H-1B1 cases

Many eligible Singaporeans have been utilizing the Interview Waiver Process which I have written about here.  

There are two possible document drop-off locations for this process in Singapore: the Aramex office in Chinatown, and the Aramex office in Changi.

However, it was recently brought to my attention that at least one representative from the Changi Aramex office has been telling Singaporean H-1B1 visa applicants not to drop off their LCA (Labor Condition Application).  In my view this is INCORRECT because the interview waiver confirmation letter (also known as the dropbox submission confirmation letter) that is typically issued to eligible Singaporeans indicates that the LCA is in fact required for H-1B1 cases.  Moreover, the LCA data such as the LCA number and the LCA expiry date would be annotated on a Singaporean's H-1B1 visa - I cannot see how it is possible for the Embassy to insert these LCA data annotations on the applicant's H-1B1 visa without the LCA.  In contrast to Changi, the Chinatown Aramex office continues to routinely accept the inclusion of the LCA for H-1B1 interview waiver cases.  Thus, the Changi Aramex office is problematic and should be avoided at this time.

In conclusion, for H-1B1 interview waiver cases I would recommend Singaporeans to please use the CHINATOWN Aramex office instead of the Changi one, in order to minimize issues or delays. 

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice

I am a Singaporean citizen. When is an H-1B visa a more useful option than an H-1B1 (Singapore) visa?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

An H-1B1 (Singapore) visa, like any temporary (non-green-card) U.S. work visa, has its own pros and cons.  But a notable advantage is that it is NOT subject to the H-1B lottery.  Nevertheless, there is one situation where an H-1B visa may be a more useful option than the H-1B1 (Singapore) visa.

If you are a Singapore citizen but were born in China or India AND are seeking an employment-based green card, the H-1B visa may be the more useful option.  Here is why.

An H-1B1 (Singapore) visa is a pure nonimmigrant intent visa.  As such, there are at least two implications:

(A)(1) The first implication is that seeking an H-1B1 for the first time or an H-1B1 renewal would not be possible if an immigrant petition (for example, an I-140 employment-based immigrant petition) is filed on your behalf.

(A)(2) The second implication is that in practice generally H-1B1 renewals at the US Embassy in Singapore beyond the first 6 years of H-1B1 become harder and harder -- the rationale is: although in theory H-1B1 can be renewed indefinitely provided you can still show strong ties to your home country, it gets more and more difficult to show strong ties to your home country the longer you've been working in the U.S. 

In contrast, the H-1B is a dual intent visa.  As a result, there are at least two implications:

(B)(1) The first implication is that seeking an H-1B for the first time or an H-1B renewal would be possible even if an immigrant petition (e.g. an I-140) is filed on your behalf.

(B)(2) The second implication is that although the H-1B has a maximum duration of 6 years, certain milestones reached can allow a person's H-1B status be extended beyond the 6-year maximum.  One such milestone is the approval of an I-140 employment-based immigrant petition on that person's behalf if that person is not able to commence an actual green card application due to immigrant visa (green card visa) unavailability as a result of country of birth quotas.

Next, due to country of birth quotas for permanent immigration (green card cases), there are at least two implications for Singaporean citizens born in China or India:

(C)(1) The first implication is that it takes a very long time for an immigrant visa (green card visa) to be available for people born in China or India with respect to EB2 and EB3 employment-based green card cases.  EB2 and EB3 are the most common employment-based green card categories.

(C)(2) The second implication is that in every employment-based green card case, one must successfully complete the I-140 petition (the "penultimate step") AND the actual green card application (the "ultimate step").  Due to the country of birth quotas mentioned above, Singaporean citizens born in China generally have to wait several years after the I-140 approval before they can commence the ultimate step, whereas Singaporean citizens born in India generally have to wait over a decade.

Because of the significant time gap between the approval of the penultimate step (I-140 immigrant petition) and the commencement of the ultimate step (actual green card application), it is practically impossible to obtain an H-1B1 visa or renewal during the time gap because by then an I-140 immigrant petition would have been filed.

As such, a Singaporean citizen born in India or China needs to obtain H-1B status before the penultimate step of the I-140 petition is filed, so that subsequent H-1B renewal(s) would not be an issue.

Furthermore, once the milestone of I-140 approval explained in (B)(2) above is met, that person's H-1B status can be renewed beyond the 6-year maximum as needed to cover the significant waiting time prior to the ultimate step of the actual green card application. 

Finally, as I've explained in my previous blog post here, H-1B1 time counts towards H-1B time.  Accordingly, there are at least two things you should note:

(D)(1) The first thing to note is that the EB2/EB3* employment based green card case is time-consuming.  With the exception of the EB2 national interest waiver (or NIW)** sub-category, the mainstream EB2/EB3 employment based cases involve a long process called the "PERM" process before the I-140 petition can even be filed.  

*EB2 and EB3 are the labels of the two most common employment-based green card categories sought by alien workers.

**But please do not be confused: an EB2 NIW case is still an EB2 case, so the applicable country of birth quotas for an EB2 category is still the same regardless of whether it is an EB2 NIW or an EB2 PERM case.

(D)(2) The second thing to note is that, because H-1B1 time counts towards the 6-year maximum H-1B time, you cannot wait too long before getting to H-1B status.  For example, if you have used up 4 years of H-1B1 time, you only have 2 years of H-1B time left to make sure that the milestone of I-140 approval described in (B)(2) above is met to help you extend your H-1B time beyond the 6-year maximum to cover the significant time before you're able to commence the ultimate step (actual green card application) due to country of birth quotas as explained in (C)(1) and (C)(2) above. 

Therefore, if you're a Singaporean citizen but were born in China or India*** AND desire an employment-based EB2/EB3 green card, consider seeking an H-1B.  Or, if you are already on an H-1B1, consider switching to an H-1B soon before it's too late.****

***To add further complexity, if you're married and your spouse was NOT born in China or India, then the concept of "cross-chargeability" allows your spouse's country of birth to be "charged" (assigned) to you, which is helpful.

****Of course, if you're a Singapore citizen born in China or India and would only wish to work in the U.S. for 6 years or less, and do not desire a green card, then you are probably fine with just working on H-1B1 (Singapore) status for up to 6 years before returning to Singapore.

Disclaimer:  This blog is for informational purposes only and does not constitute legal advice

Does H-1B1 time count towards H-1B time?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

In this blog post I address the following questions from Singaporeans who are currently on H-1B status but were on H-1B1 status immediately before that:

(1) Does H-1B1 time count towards H-1B time?

(2) If so, can any time spent outside the U.S. during H-1B1 also be recaptured and added towards my H-1B time?

I answer these questions below.

Question (1): Does H-1B1 time count towards H-1B time?

The first question is pertinent because it is not uncommon for Singaporean employees to be "converted" to H-1B status immediately after being on H-1B1 status, but H-1B status in the U.S. is only granted for a maximum duration of 6 years.

The answer is: YES. 

The reason is because of the federal regulation 8 CFR 214.2(h)(13)(iii)(A) which provides: 

An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the [Immigration and Nationality] Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year. (Emphasis added)

Section 101(a)(15)(H) of the Immigration and Nationality Act (or "INA") technically also includes Section 101(a)(15)(H)(i)(b1) which refers to H-1B1.  

For example, if you have already accumulated 2 years of H-1B1 status in the U.S., you will only be entitled to 4 years (instead of 6 years) of H-1B status.

However, you can be entitled to the full 6 years of H-1B status if (after ending your time in the U.S. working on H-1B1 status) you have resided and been physically present outside the U.S. for 1 year immediately prior to seeking H-1B status, per 8 CFR 214.2(h)(13)(iii)(A) above.

Footnote:  For avoidance of doubt, note that unless your employer is a "cap-exempt petitioner" you would be subject to the H-1B lottery if you're seeking H-1B status for the first time, even if you have been on H-1B1 status before.

Question (2): If so, can any time spent outside the U.S. during H-1B1 also be recaptured and added towards my H-1B time?

As you can see from the response to Question (1), your H-1B1 time in the U.S. counts towards your H-1B time, unless you meet the exception of physically residing outside the U.S. for 1 year in between described above.

The understandable follow-up question is:  If so, for the purposes of H-1B can I also recapture time spent outside the U.S. back when I was on H-1B1 status?  

The answer is:  YES.

For example, if you have been working in the U.S. for 4 years on H-1B1 status, but out of that 4 years you've spent a total of 45 full days outside the U.S., you can recapture those 45 days and add them to the amount of remaining H-1B time you will seek.

Federal regulations provide that "[t]ime spent physically outside the United States exceeding 24 hours by an alien during the validity of an H-1B petition that was approved on the alien's behalf shall not be considered for purposes of calculating the alien's total period of authorized admission ... such remaining time may be recaptured in a subsequent H-1B petition on behalf of the alien" (See 8 CFR 214.2(h)(13)(iii)(C)). 

However, to the best of my knowledge the regulations appear to be silent on whether time spent outside the U.S. when the alien was on H-1B1 could be counted towards the recapture of H-1B time.

Nevertheless, as a matter of practice USCIS allows time spent outside the U.S. when the alien was on H-1B1 to be counted towards the recapture of H-1B time.  

Practical tip:  Typically your I-94 travel history is the most efficient way of checking and proving your time outside of the U.S. because it shows your departure and arrival dates.  This can be accessed online here (click on "VIEW TRAVEL HISTORY").

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.