Everyone who has some knowledge of H1b classification/visa is aware that once you are counted in the H1b quota in the last six years you are not subject to the H1b quota again. So basically, if you were counted in the H1b quota in the year 2020 then till the year 2026 you are not subject to H1b quota. But there are various circumstances when you are not subject to quota even if you had a H1b more than six years back if you had worked in USA in the past. Note that the main condition not to be subject to H1b quota if you had a H1b approved more than six years back is if you worked in the past in USA on H1b status. Let us look at an example that will explain it in clear terms.
Raghu, a citizen of India, was working in India as a Software Engineer. In the year 2000 (23 years back) a company Amazing Tech Inc. from USA offered a job and filed the H1b petition for Raghu. After the H1b was approved Raghu came to USA in the year 2001 and worked for six months but due to some personal situation he had to move back to India. Now after 23 years Oracle Corporation in USA wants to hire Raghu as a Program Manager. Raghu is not subject to quota and Oracle Corporation can file for H1b under consular processing and seek validity for 3 years since he still has five and half years’ time left on his H1b out of the total six years. If Raghu in the past spent around 4 years in USA on H1b then he would be eligible for a 2 years validity on the H1b.
Same situation as above, but what if Raghu never came to USA after his H1b was approved in 2000? He will be subject to quota since recapture of the balance of six year will work only if someone has spent some time in USA on H1b.
Many are not aware that they are not subject to H1b quota if they had spent some time in USA working on H1b, even if it was two decades back. Companies can look for such resources without having to worry about the H1b quota when they make hiring decisions.
What happens after sixth year? Most of the time one of the employers of H1b beneficiary would have filed a PERM application (first step of Green Card/Permanent Residency) or I-140 petition (second step of Green Card). The way it works is that, if a permanent residency process is more than 365 days old then you get one year incremental extension beyond the six years term. This is a situation where a PERM application was filed, and the case went into audit or denied and employer filed Request to Reconsider and the whole process since filing of the PERM is more than one year old. This situation clearly allows the H1b beneficiary to seek one year extension beyond six years. Similarly, if one’s PERM is approved, and one is waiting to file the I-140 or filed the I-140 and is pending with USCIS and total time elapsed from the date of filing the PERM to date of the expiry of H1b is year or more then one qualifies for one year extension. If a I-140 is approved and immigrant visa numbers are not available, then the H1b beneficiary is not subject to six year limit and in fact he/she can get extension for three years period instead of one year. Anyone who’s I-140 is approved is also not subject to the H1b quota.
So, as you can see, there are various situations which will make a H1b beneficiary not subject to H1b quota even beyond the last six years period.
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