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 1:  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.

Footnote 2:  It is possible that USCIS may be inconsistent in its practices and decide not to count H-1B1 time towards H-1B time.  For instance, to the best of my current knowledge a 2014 version of the Vermont Service Center's I-129 guide for local USCIS adjudicators has indicated that H-1B1 time should not be counted towards H-1B time, and this has been relied upon to argue that H-1B1 time should not be counted.  However, a guide for local USCIS officers is unfortunately not federal regulation and the Vermont Service Center is also not the only USCIS Service Center adjudicating H-1B petitions.  As such, USCIS is generally still entitled to, and has, relied on the plain wording of federal regulation 8 CFR 214.2(h)(13)(iii)(A) above to count H-1B1 time toward H-1B time.

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.