Am I eligible for Cap exempt H1?

[sibabrata.dash]

Hi All,
I have a question on H1 cap exempt category and have been getting different answers from different people, so thought of posting this here.

I have had an H1 from Nov 2007 through Apr 2009 and then an extension from Dec 2009 through Feb 2012. On and off I spent around 3 years in US working for a for profit organization (lets say A). But then I quit that company in Aug 2010 and joined another for profit organization (B) in Sept 2011. Then company B wanted me to have a B1, so I had a B1 stamped in Jan 2012 and during the stamping the consulate officer put a stamp on my H1 visa as "Cancelled without prejudice".

Now I started travelling to US in Mar 2012 on B1 like 4 times now for a 1 month - 2 month assignments.

So in essence:
1. I did not exhaust 6 years on my H1
2. H1 is in expired state since Feb 2012 (with a stamp "Cancelled without prejudice" since Jan 2012)
3. I have been travelling to US on B1 regularly since Mar 2012 (never spent a contiguous year outside US since H1 expiration date)

So am I eligible to file for an H1 under the exempt category??

I know I made it is a little long, but wanted the info to be as precise as possible for your kind advice. Thanks in advance.

[Nattybone]

Hi All,
I have a question on H1 cap exempt category and have been getting different answers from different people, so thought of posting this here.

I have had an H1 from Nov 2007 through Apr 2009 and then an extension from Dec 2009 through Feb 2012. On and off I spent around 3 years in US working for a for profit organization (lets say A). But then I quit that company in Aug 2010 and joined another for profit organization (B) in Sept 2011. Then company B wanted me to have a B1, so I had a B1 stamped in Jan 2012 and during the stamping the consulate officer put a stamp on my H1 visa as "Cancelled without prejudice".

Now I started travelling to US in Mar 2012 on B1 like 4 times now for a 1 month - 2 month assignments.

So in essence:
1. I did not exhaust 6 years on my H1
2. H1 is in expired state since Feb 2012 (with a stamp "Cancelled without prejudice" since Jan 2012)
3. I have been travelling to US on B1 regularly since Mar 2012 (never spent a contiguous year outside US since H1 expiration date)

So am I eligible to file for an H1 under the exempt category??

I know I made it is a little long, but wanted the info to be as precise as possible for your kind advice. Thanks in advance.

Hello, Sibabrata.

I hope the following answer your queries:
a) H1B continuous usage - You can stay in USA on H1B visa for a maximum of 6 years (if you have not filed for Green Card). If you have filed for Green Card and everything is fine, then you can continue getting extensions till you get the Green Card.

b) H1B usage with breaks - If someone is issued a 3 year visa and he has been travelling to USA and back for projects on H1B, he can again file for a petition for extension of H1B. This can be done till you do not exhaust 6 years of stay inside the USA on H1B.

c) H1B expired but unused - For someone to revive an old petition which has been cancelled / expired but is not fully used, one should have maintained H1B status for some time in the last 6 years. So, a H1B visa issued in 2005, gets revived in 2009 for 3 years (till 2012) and the person maintains H1B till 2012, can again be revived in 2015 for unused time as cap exempt.

These are my opinions from personal experience and thoughts. I am not a professional.

Hope this helps.

Wishing you luck.

Cheers,

[sibabrata.dash]

c) H1B expired but unused - For someone to revive an old petition which has been cancelled / expired but is not fully used, one should have maintained H1B status for some time in the last 6 years. So, a H1B visa issued in 2005, gets revived in 2009 for 3 years (till 2012) and the person maintains H1B till 2012, can again be revived in 2015 for unused time as cap exempt.

Thanks for replying to my query Nattybone.

I think I fall into this category. However one recruiter told me that since your H1 was cancelled in Feb 2012 and you have stayed out of US for more than a year, you do not qualify for H1B cap exempt. But in reality I have entered US 4 times since Feb 2012, BUT on B1 visa. So the confusion is if the recruiter is right or wrong about the eligibility. Please do let me know.

Thanks,
Sibabrata

[Nattybone]

Thanks for replying to my query Nattybone.

I think I fall into this category. However one recruiter told me that since your H1 was cancelled in Feb 2012 and you have stayed out of US for more than a year, you do not qualify for H1B cap exempt. But in reality I have entered US 4 times since Feb 2012, BUT on B1 visa. So the confusion is if the recruiter is right or wrong about the eligibility. Please do let me know.

Thanks,
Sibabrata

Hello, Sibabrata.

The following is a story of someone known to me - please draw your conclusions from it:

July 2008 - Issued H1B, Sep 2008 - Travelled to US on H1B, Jan 2009 - H1B Out of Status (notice received in Jun 2009), Jun 2009 - Returned to India for stamping (In India 221G and case in a limbo), Jun 2011 - Issued B1/B2, Sep 2011 - Travelled to US on B2, Feb 2012 - Filed for revival of H1B and COS from B2 to H1, Mar 2012 - RFE on H1B, May 2012 - RFE responded too, Jun 2012 - H1B petition denied (Occupation offered not specialized as per USCIS)

This person exited US (H1B) in June 2009 and filed for revival of H1B in Feb 2012, after more than 1 year of staying outside USA.

Hope this helps. If in doubt, engage an attorney for 100$ per hour. They provide a lot of clarity. My responses are based on personal thoughts and experiences.

Wishing you luck.

Cheers,