How are the NBA 24-second clock and H-1B related?

You probably don’t think of the NBA 24-second clock as being related to your length of H-1B time in the United States, but actually the two are related. Understanding why can help you plan your approach regarding H-1B.

In the NBA, the offensive team generally has up to 24 seconds to either make a field goal or to at least cause the ball to touch the offensive rim. If they fail to do either, then they lose possession of the ball. However, if the ball touches the rim, and the offensive team then gains control of the ball, they get a new 24 second clock.

H-1B status has its own version of a 24-second clock. In this case, the clock is a six year clock. That is, in the absence of other actions, most notably the start of a green card process, a person is H-1B status is limited to six years in the U.S. in such status. At the end of that six years, the can get additional H-1B time in the U.S. but first must leave the U.S. for at least a year before returning. Upon returning to the U.S., the person will be subject to the H-1B cap if the employer is so subject.

If a person was in cap-subject H-1B status for fewer than six years, then leaves the U.S. for at least a year, then that person has two options should he or she return to the U.S. and seek H-1B status with a cap-subject employer.

First, the person could legitimately seek another six years of H-1B. Just as an NBA team can get a new 24 second clock if the make an offensive rebound of a shot that touches the rim, so too can this person get a new six years, because the person spent at least one year outside the U.S. However, in exchange for getting a full six years, the person will need to be subject to the cap. That is, the employer must file the petition soon enough to be in time, before the cap is reached.

Alternatively, the person can claim an exemption from the H-1B cap, due to having been counted already, during the person’s earlier time in the U.S. However, in this case, the person is ineligible for a full six years of H-1B time. Rather, the person is limited to the remaining unused H-1B time from the previous stay.

For example: a person spends two years in cap-subject H-1B status, then leaves the US for one year.  Upon returning, the person can choose either to have
- a new six years of H-1B time, but will have to deal with the possibility of a cap full situation, because the person will be subject to the cap
- the remaining four years of H-1B time that was unused from the earlier stay, but in return need not worry about the cap, i.e. be cap exempt

In other words, the person cannot have his cake and eat it too. The person cannot have exemption from the cap and also a full six years. Rather, the person will have to choose between cap exemption (and get less than six years) or get a full six years (but be subject to the cap).