H1B filing under Cap Exemption

[useresh]

Hi,

This is regarding the filing of H1B under cap exemption.
I have an H1B petition filed in 2007. I had got the H1B visa stamped as well but I never used it. It is expired now.
Currently I am on L1B (from 2011 October) from X company.

Please let me know if I am eligible to apply H1B with any Y company under NO Cap (cap exemption) as my 6 years(of the petition) is not complete

[kabkaba]

Yes, cap-exempt petition can be filed.

[useresh]

Thanks kabkaba.

I just needed one clarification. I had the H1B visa stamped as well at that time but never went to US at all.

Will that be a negative point in filing the H1B under cap exemption.

[prao81]

H1B filing under Cap Exemption

You should check this with an attorney.

If you look at the form I129 where you will be claiming the cap-exempt option it says " where the beneficiary of this petition has been granted h1b status within the last 6 yrs"

The granted h1b status part is the vague area . Many attorneys interpret it as actual physical presence in the US (you are basically in status only if you enter the US, not just have a stamped petition)

But there are others who say even a petition filed within the last 6 yrs will work.

Please consult a legal person to see what is the right way for you.

[kabkaba]

The Visa makes no difference.

The complete wording in I-129 also states,"beneficiary is applying from abroad to claim remaining portion of 6 years", which is applicable here.

[prao81]

H1B filing under Cap Exemption

Kabkaba, the exact point is

(1)the beneficiary of this petition was granted h1b status within the last 6 yrs
(2) is applying from abroad to reclaim the remaining portion of the 6 yrs
or (3) something else blah blah ....

So my question is arent point 1 and 2 supposed to be considered together , if yes what is meant by granted h1b status , is approval of h1b petition granting h1b status , I thought actual entry and stay inside the US grants you status rather than just having a petition which you have never used to enter the US

This area of the law is so grey, nobody seems to have a sure answer to this ..

[kabkaba]

1 or 2 or 3

[MBATechGrad]

Would like to ask a question to Senior members regarding option (b) "Applying from abroad to reclaim the remaining portion of the 6 yrs" provided in form I129 -
Does it mean that remainder option (6 - # of years of previous US stay on H1 & L1) is applicable only if applicant is applying for CAP exempt H1 from abroad?

In case applicant is already in US (working on L1 visa) and want to apply COS to CAP Exempt H1 (on the basis of H1 that was issued earlier), this remainder option will not be applicable? And he may get fresh 6 years or remaining # of years per his current L1/I-94?

To give you an example -
My friend was in US on H1 from 2008 to 2012 (4 Years) before moving back to India. He was outside the country for one and half years and subsequently came back on L1B visa (July 2014). After working on L1 visa for 5 months (till Nov 2014), he switched job by applying COS from L1 to CAP Exempt H1 (on the basis of previous H1).

If remainder option was applicable in this scenario, his new I-797 validity should have been Aug 2016 for period 1 year and 7 months (6 years - 4 years on H1- 5 Months of L1). However his new I-797 has validity period of 2 and half years (July 2017). Would like to clarify following queries -

1. Is he allowed to work till July 2017 considering I-797 is approved till that date? Or, Could it lead to challenges during PERM/I-140 approval?
2. As he changed status to Cap exempt H1 while he was in US on L1 visa, hope 2 and half years validity period of I-797 is OK? Guess For remainder option to be effective, candidate should be abroad?
3. Could it be possible that his counter is reset (as he had spent more than 1 year overseas)?
4. Could it be an oversight from USCIS? If so, can he still work till July 2017 (validity period of I-797).?

Appreciate your kind suggestion.
Regards
A

[MBATechGrad]

Request experts to please comment. This is urgent.

Appreciate it.

Regards
A

Would like to ask a question to Senior members regarding option (b) "Applying from abroad to reclaim the remaining portion of the 6 yrs" provided in form I129 -
Does it mean that remainder option (6 - # of years of previous US stay on H1 & L1) is applicable only if applicant is applying for CAP exempt H1 from abroad?

In case applicant is already in US (working on L1 visa) and want to apply COS to CAP Exempt H1 (on the basis of H1 that was issued earlier), this remainder option will not be applicable? And he may get fresh 6 years or remaining # of years per his current L1/I-94?

To give you an example -
My friend was in US on H1 from 2008 to 2012 (4 Years) before moving back to India. He was outside the country for one and half years and subsequently came back on L1B visa (July 2014). After working on L1 visa for 5 months (till Nov 2014), he switched job by applying COS from L1 to CAP Exempt H1 (on the basis of previous H1).

If remainder option was applicable in this scenario, his new I-797 validity should have been Aug 2016 for period 1 year and 7 months (6 years - 4 years on H1- 5 Months of L1). However his new I-797 has validity period of 2 and half years (July 2017). Would like to clarify following queries -

1. Is he allowed to work till July 2017 considering I-797 is approved till that date? Or, Could it lead to challenges during PERM/I-140 approval?
2. As he changed status to Cap exempt H1 while he was in US on L1 visa, hope 2 and half years validity period of I-797 is OK? Guess For remainder option to be effective, candidate should be abroad?
3. Could it be possible that his counter is reset (as he had spent more than 1 year overseas)?
4. Could it be an oversight from USCIS? If so, can he still work till July 2017 (validity period of I-797).?

Appreciate your kind suggestion.
Regards
A

[MBATechGrad]

can expert on this forum please comment?

Appreciate it
A