CAP-Exempt H1 B Filing

[ab_bec]

Dear members

I traveled with my H1B to US in Dec,2011 and came back to India after 3 months ( April,2012 ) . After that I changed my employer ( who was my petitioner for H1B) and joined another organization.

After this I never used my H1B but visited US once in 2013 with B1/B2 VISA. My H1B would get expired in Sep,2014.

Now, I got a job offer in one US based company . My idea was , I can file for a fresh cap-exempt H1B with the new petitioner which would be valid for 6 years minus 3 months I spent in US with H1B. So, I would get a H1B which would be valid for 5 years 9 months.
But the new employer is saying , I need to go through fresh H1B stamping because I was out of US for more than 1 year which I think is not correct.

Kindly let me know your view on my case.

If you can provide link to authentic document from USCIS , that would be great.

Thanks in advance!!


Regards:
Ananda

[raghvi]

Dear members

I traveled with my H1B to US in Dec,2011 and came back to India after 3 months ( April,2012 ) . After that I changed my employer ( who was my petitioner for H1B) and joined another organization.

After this I never used my H1B but visited US once in 2013 with B1/B2 VISA. My H1B would get expired in Sep,2014.

Now, I got a job offer in one US based company . My idea was , I can file for a fresh cap-exempt H1B with the new petitioner which would be valid for 6 years minus 3 months I spent in US with H1B. So, I would get a H1B which would be valid for 5 years 9 months.
But the new employer is saying , I need to go through fresh H1B stamping because I was out of US for more than 1 year which I think is not correct.

Kindly let me know your view on my case.

If you can provide link to authentic document from USCIS , that would be great.

Thanks in advance!!


Regards:
Ananda

Quoting from USCIS website:

The regulations at 8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien did not exhaust his or her maximum six-year period of admission.


There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:


· be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or


· seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13813.html

Search for H-1B “Remainder” Time

This is my opinion not legal advice.

[ab_bec]

Quoting from USCIS website:

The regulations at 8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien did not exhaust his or her maximum six-year period of admission.


There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:


· be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or


· seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13813.html

Search for H-1B “Remainder” Time

This is my opinion not legal advice.

Thanks Raghvi....

If I read you correctly, this should mean, I can file a cap-exempt petition and get my visa with new petitioner name fairly early....

Then, not sure why attorney of new employer is saying "as you are out of US for more than a year, we need to file a new H1B and have to go under cap"

[raghvi]

Thanks Raghvi....

If I read you correctly, this should mean, I can file a cap-exempt petition and get my visa with new petitioner name fairly early....

Then, not sure why attorney of new employer is saying "as you are out of US for more than a year, we need to file a new H1B and have to go under cap"

Yes, you are cap exempt, I dont know why your employer/attorney seem to think otherwise. Is it a reputed employer/lawyer firm? Are you paying for your H1?

This is my opinion not legal advice.

[ab_bec]

Yes, you are cap exempt, I dont know why your employer/attorney seem to think otherwise. Is it a reputed employer/lawyer firm? Are you paying for your H1?

This is my opinion not legal advice.

Yes, they are asking me to pay.... and saying it would be reimbursed later on... I am in India, so not able to decide...

Can I get your email id please?

[raghvi]

Such employees are not really trustworthy. But then there are lot of factors because of which someone would risk associating with them, its a personal choice.

I would suggest you also search for employers who are willing to file a cap exempt petition for you as cap exempt petition can have an immediate start date, instead of waiting till Oct for a fresh petition to start.

This is my opinion not legal advice.

[ab_bec]

Such employees are not really trustworthy. But then there are lot of factors because of which someone would risk associating with them, its a personal choice.

I would suggest you also search for employers who are willing to file a cap exempt petition for you as cap exempt petition can have an immediate start date, instead of waiting till Oct for a fresh petition to start.

This is my opinion not legal advice.

I guessed the same and there are multiple other reasons which raised doubt.... , Had I been in the US , I could get lots of other options , but from India it is difficult to get one , even if I am in SAP ..

Is their any authentic database where I can check name of companies which transfer/file H1B from India?

Many Thanks!

Warm Regards
Ananda

[MBATechGrad]

Validity Period of CAP Exempt H1

Hi All,
a quick query regarding following CAP Exempt case -
I was in US on H1B (Fresh H1) from Mar-2009 to April 2013 and moved back to India in May 2013. After spending 1 year and 3 months in India, I am now back in US on L1 since Sept, 2014. Visit details are -

H1 - Mar-2009 to April 2013 -> 4 Years and 1 Month
India - May 2013 to Aug 2014 -> 1 Year and 3 Months
L1B - Sept, 2014 to Till -> 3 Months

As I have received a good offer from another company, I am planning to move to previous H1 under CAP exempt category. Could you please advise expected validity of quota exempt H1 visa ? -

Will it be fresh 6 years ( 3 years followed by another 3 years of extension) as I was out of country for more than an year. Or will it be 1 year and 11 months ( 6 years - 4 Years and 1 Month i.e. duration of previous H1 stay in US.

One of the attorney says that I will get fresh 6 years (as I was out of country for more than an year) while another says it will be for remainder period. very much confused. Appreciate some guidance..

Regards
Arun

[MBATechGrad]

Validity Period of CAP Exempt H1

Request Senior Member to please respond and provide guidance. Much appreciated.

Hi All,
a quick query regarding following CAP Exempt case -
I was in US on H1B (Fresh H1) from Mar-2009 to April 2013 and moved back to India in May 2013. After spending 1 year and 3 months in India, I am now back in US on L1 since Sept, 2014. Visit details are -

H1 - Mar-2009 to April 2013 -> 4 Years and 1 Month
India - May 2013 to Aug 2014 -> 1 Year and 3 Months
L1B - Sept, 2014 to Till -> 3 Months

As I have received a good offer from another company, I am planning to move to previous H1 under CAP exempt category. Could you please advise expected validity of quota exempt H1 visa ? -

Will it be fresh 6 years ( 3 years followed by another 3 years of extension) as I was out of country for more than an year. Or will it be 1 year and 11 months ( 6 years - 4 Years and 1 Month i.e. duration of previous H1 stay in US.

One of the attorney says that I will get fresh 6 years (as I was out of country for more than an year) while another says it will be for remainder period. very much confused. Appreciate some guidance..

Regards
Arun

[raghvi]

Hi All,
a quick query regarding following CAP Exempt case -
I was in US on H1B (Fresh H1) from Mar-2009 to April 2013 and moved back to India in May 2013. After spending 1 year and 3 months in India, I am now back in US on L1 since Sept, 2014. Visit details are -

H1 - Mar-2009 to April 2013 -> 4 Years and 1 Month
India - May 2013 to Aug 2014 -> 1 Year and 3 Months
L1B - Sept, 2014 to Till -> 3 Months

As I have received a good offer from another company, I am planning to move to previous H1 under CAP exempt category. Could you please advise expected validity of quota exempt H1 visa ? -

Will it be fresh 6 years ( 3 years followed by another 3 years of extension) as I was out of country for more than an year. Or will it be 1 year and 11 months ( 6 years - 4 Years and 1 Month i.e. duration of previous H1 stay in US.

One of the attorney says that I will get fresh 6 years (as I was out of country for more than an year) while another says it will be for remainder period. very much confused. Appreciate some guidance..

Regards
Arun

I think neither, it would be even lesser with your L1 term also added to calculate the 6 Year limitations. For getting a fresh 6 Year term one needs to file a new petition as well as be out of US for an year.

This is my opinion not legal advice.