H1B Cap Exemption

[whyrex]

Hi,

This is from a friend: "I had an approved H1-B from Company A valid from 10/01/2007 to 09/27/2010. I never travelled to the US using this Visa because of personal issues. Now, Company A wants to sponsor my H1B again. Am I eligible for a cap exemption?"

From https://www.immihelp.com/h1b-cap-petition/, "Following beneficiaries of approved H1B petitions are exempt from the H1B annual cap: Beneficiary of this petition has been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than one year after attaining such status."

Does the start date (in this case 10/01/2007) have to be within 6 years? Or is it ok for the period (10/01/2007 to 09/27/2010) to be within 6 years?

Kindly help!

Thanks,
Wy

[raghvi]

Hi,

This is from a friend: "I had an approved H1-B from Company A valid from 10/01/2007 to 09/27/2010. I never travelled to the US using this Visa because of personal issues. Now, Company A wants to sponsor my H1B again. Am I eligible for a cap exemption?"

From https://www.immihelp.com/h1b-cap-petition/, "Following beneficiaries of approved H1B petitions are exempt from the H1B annual cap: Beneficiary of this petition has been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than one year after attaining such status."

Does the start date (in this case 10/01/2007) have to be within 6 years? Or is it ok for the period (10/01/2007 to 09/27/2010) to be within 6 years?

Kindly help!

Thanks,
Wy

There is ambiguity around the same. Generally, if one was on H1 status in last 6 Years or had a valid visa in last 6 Years it should be possible to file a cap exempt petition to utilize the remainder time.

This is my opinion not legal advice.

[whyrex]

There is ambiguity around the same. Generally, if one was on H1 status in last 6 Years or had a valid visa in last 6 Years it should be possible to file a cap exempt petition to utilize the remainder time.

Thanks raghvi.

Yes, even after extensive searching I couldn't figure out if he would be cap exempt until 2007 + 6 = 2013 or 2010 + 6 = 2016.

Since the visa was unused, remainder time is still 6 years, right?

[raghvi]

Thanks raghvi.

Yes, even after extensive searching I couldn't figure out if he would be cap exempt until 2007 + 6 = 2013 or 2010 + 6 = 2016.

Since the visa was unused, remainder time is still 6 years, right?

Yes.

This is my opinion not legal advice.

[whyrex]

Yes.

Thanks. Any guesses where they would count the 6 years from? Start date (2007) or end date (2010) of the period when the previous H1B was valid? A beneficiary would be considered cap exempt if: (1) was previously granted status as an H-1B nonimmigrant in the past 6 years seems to sound like cap is exempt for 'grant date' + 6 years. i.e. in this case only till 2013.

[raghvi]

As I mentioned in this thread, its up to USICS interpretation; http://www.immihelp.com/forum/showth...ud-file-new-H1

This is my opinion not legal advice.

[whyrex]

As I mentioned in this thread

Thanks raghvi. In that thread you started with "There is ambiguity around how USCIS interprets H1B remainder option.", but concluded that "it would be in 2007 Cap and its been over 6 Years so might not be eligible". So for the case in this thread, since the H1 was valid from Oct 2007 to Sep 2010, conclusion is that he is not cap exempt because 6 years have already passed since the date H1 was issued, right?

[whyrex]

As I mentioned in this thread, its up to USICS interpretation

Update: I consulted an attorney at one of the better known (atleast on the net) immigration law firms. When asked if this case would be cap exempt, she said 'may be'. According to her there is a 50-50 chance that USICS might interpret this as cap exempt. She did advice that I should do a petition for cap exemption ASAP and if that fails, apply the normal way in April.

[wkw27]

Update: I consulted an attorney at one of the better known (atleast on the net) immigration law firms. When asked if this case would be cap exempt, she said 'may be'. According to her there is a 50-50 chance that USICS might interpret this as cap exempt. She did advice that I should do a petition for cap exemption ASAP and if that fails, apply the normal way in April.

Whyrex would you mind sharing your result?

[Sanjay Sam Misra]

H1B cap exemption

I had H1B visa stamped on my passport and it was valid from 29th August 2003 to 10th June 2003.This visa was not used at all and I did not visit USA. Thereafter I got my L1B visa stamped which was valid from 2006 to 2009 and I travelled to USA using this visa for 3 months only.Both these visas were from an earlier employer.Now an employer in USA is telling that I can use my old H1B petition to file a new petition as i fall under Cap exempt.Is that possible?Please reply asap.