VSC recently confirmed that a fresh allocation of 6 years in H-1B status under 8 CFR §214.2(h)(13)(iii) is available only after the Beneficiary has been physically outside the U.S. for the full year. The I-129H petition may not be filed until the Beneficiary has been outside the U.S. for the full year because eligibility must be demonstrated at the time the petition is filed (8 CFR §103.2(b) (1)). If the I-129H petition is filed before the Beneficiary has spent the immediate prior year outside the United States, then the Beneficiary would not be eligible for the benefit sought at the time the petition is filed, and the petition would be denied.

Please note that USCIS checks IBIS and other databases to track the admissions of the Beneficiary to the United States. Any time spent physically present in the United States during the one year period must be recouped abroad before the Beneficiary may be eligible for another 6 years in the H classification under 8 CFR §214.2(h)(13)(i)(B).