Minimum stay per year for H-1B?
Sep 25th 2008, 11:45 am
#1
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Joined: Jul 2004
Location: San Francisco
Posts: 27
Minimum stay per year for H-1B?
Hello,
I have been employed on H-1B for a small software company (9 people) with offices in San Francisco and Berlin, Germany for the last two years. We resell software for a larger company (50 employees), also with offices in San Francisco and Berlin.
We are about to merge with the larger company on January 1st, 2009. For this reason, I have been on an assignment in our Berlin office for the last month. That assignment included training a new employee and preparing the merger in January 2009. Prior to that I have been on vacation outside the US for 3 weeks. I will be in Berlin, Germany for another month, before returning to San Francisco and our office there on October 26th. The last time I left the US was on July 31st, 2008.
So all in all, I will be outside the US for nearly 3 months, from July 31st to October 26th. Now I'm a bit worried that this might impact my H-1B status and that I might not be able to enter on H-1B again. I talked to my lawyer yesterday and he said, that there isn't any law regulating how long one has to stay in the US in a 12-month period if on H-1B.
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
I have been employed on H-1B for a small software company (9 people) with offices in San Francisco and Berlin, Germany for the last two years. We resell software for a larger company (50 employees), also with offices in San Francisco and Berlin.
We are about to merge with the larger company on January 1st, 2009. For this reason, I have been on an assignment in our Berlin office for the last month. That assignment included training a new employee and preparing the merger in January 2009. Prior to that I have been on vacation outside the US for 3 weeks. I will be in Berlin, Germany for another month, before returning to San Francisco and our office there on October 26th. The last time I left the US was on July 31st, 2008.
So all in all, I will be outside the US for nearly 3 months, from July 31st to October 26th. Now I'm a bit worried that this might impact my H-1B status and that I might not be able to enter on H-1B again. I talked to my lawyer yesterday and he said, that there isn't any law regulating how long one has to stay in the US in a 12-month period if on H-1B.
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
Sep 25th 2008, 3:21 pm
#2
Forum Regular
Joined: Jun 2007
Posts: 187
Re: Minimum stay per year for H-1B?
Hello,
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
In fact, I'm aware of existing USCIS case law and a memorandum to the effect that one can 'recapture' extensive time spent outside the US while in H1-B status, as long as that time was 'meaningfully interruptive' of the time spent in the USA. I know of at least two co-workers of mine that succeeded in getting time added to the 6years duration of H-1B status based on that case law. So either USCIS has recently changed its policy or the case law referred to by your lawyer is contradictory ? I'd be interested to know more about the case in question. I have to say I have never heard of any requirement to spend 11+ months 'remaining' in the US with regard to an H1-B visa.
Sep 25th 2008, 3:25 pm
#3
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Minimum stay per year for H-1B?
Hello,
I have been employed on H-1B for a small software company (9 people) with offices in San Francisco and Berlin, Germany for the last two years. We resell software for a larger company (50 employees), also with offices in San Francisco and Berlin.
We are about to merge with the larger company on January 1st, 2009. For this reason, I have been on an assignment in our Berlin office for the last month. That assignment included training a new employee and preparing the merger in January 2009. Prior to that I have been on vacation outside the US for 3 weeks. I will be in Berlin, Germany for another month, before returning to San Francisco and our office there on October 26th. The last time I left the US was on July 31st, 2008.
So all in all, I will be outside the US for nearly 3 months, from July 31st to October 26th. Now I'm a bit worried that this might impact my H-1B status and that I might not be able to enter on H-1B again. I talked to my lawyer yesterday and he said, that there isn't any law regulating how long one has to stay in the US in a 12-month period if on H-1B.
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
I have been employed on H-1B for a small software company (9 people) with offices in San Francisco and Berlin, Germany for the last two years. We resell software for a larger company (50 employees), also with offices in San Francisco and Berlin.
We are about to merge with the larger company on January 1st, 2009. For this reason, I have been on an assignment in our Berlin office for the last month. That assignment included training a new employee and preparing the merger in January 2009. Prior to that I have been on vacation outside the US for 3 weeks. I will be in Berlin, Germany for another month, before returning to San Francisco and our office there on October 26th. The last time I left the US was on July 31st, 2008.
So all in all, I will be outside the US for nearly 3 months, from July 31st to October 26th. Now I'm a bit worried that this might impact my H-1B status and that I might not be able to enter on H-1B again. I talked to my lawyer yesterday and he said, that there isn't any law regulating how long one has to stay in the US in a 12-month period if on H-1B.
However, he also said that USCIS "case law" indicates that somebody on H-1B should remain in the US for at least 11 out of 12 months. You should also know, that I travel quite extensively and that - in total - I probably have been outside the US for more than a month between January 1st and July 31st, as I travelled to Mexico, Canada, Germany and Argentina. I never had problem returning on H1-B, but none of those trips lasted for more than 2 weeks.
So my question is:
a) am I gonna be in trouble when re-entering the US on October 26th?
b) are border officers aware of such case law?
Thanks,
Martin
Check with the lawyer again. You may have misunderstood her.
Sep 30th 2008, 1:41 pm
#4
Just Joined
Thread Starter
Joined: Jul 2004
Location: San Francisco
Posts: 27
Re: Minimum stay per year for H-1B?
Unfortunately, I don't know where my lawyer found that case law. I think he mentioned that he got that information from yet another lawyer down in their L.A. office.
In any case, I found some other information online, including the USCIS website, and I'm pretty sure now that I do not have a reason to worry.
Martin
Oct 5th 2008, 12:13 am
#5
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Joined: Aug 2008
Location: Cincinnati, OH (formerly FL)
Posts: 21
Re: Minimum stay per year for H-1B?
i worked in an office where some of the H1Bs spent the entire year out (even doing their taxes by fedex)- i used to spend probably 10 months out of 12 in South America (based out of and paid from an office in Miami)...all perfectly legal.
.... in fact depending on how much time you spend out the country, you can possibly get a tax break (if you can find an accountant who knows the rules)
.... in fact depending on how much time you spend out the country, you can possibly get a tax break (if you can find an accountant who knows the rules)
