Cap exemption for expired H1B Visa

[rakitic]

Hello All,

My H1B petition was approved in May 2009. I was issued a H1B Visa that was effective from October 2009 to August 2012. I worked in the US from October 2009 to May 2012 and returned home. So I have 6 months of "unused" H1B visa time. I have been offered a job in the US and I have accepted the position. The only thing pending is the H1B Visa. I have the following queries:

1. Would I be exempt from the 65,000 cap for the current window (April 1, 2014)?

2. If yes, will the new visa be valid for 6 months or will it be valid for another 3 years?

[raghvi]

Hello All,

My H1B petition was approved in May 2009. I was issued a H1B Visa that was effective from October 2009 to August 2012. I worked in the US from October 2009 to May 2012 and returned home. So I have 6 months of "unused" H1B visa time. I have been offered a job in the US and I have accepted the position. The only thing pending is the H1B Visa. I have the following queries:

1. Would I be exempt from the 65,000 cap for the current window (April 1, 2014)?

2. If yes, will the new visa be valid for 6 months or will it be valid for another 3 years?

As H1 can be extended by another 3 Years upon completion of first 3 Years technically you are eligible for 3.5 Years of unused H1 period which can be reclaimed.

1. Yes.
2. It depends upon how long your sponsor can show work for you. If they can show genuine work for you for 3 Years then you can get fresh H1 stamped for 3 Years.

This is m opinion not legal advice.

[rakitic]

So does this mean that I'm guaranteed a H1b? I already got a job offer from a Big 4 firm.

Or there is no such thing as being guaranteed a visa.

[raghvi]

So does this mean that I'm guaranteed a H1b? I already got a job offer from a Big 4 firm.

Or there is no such thing as being guaranteed a visa.

You are right, there is no such thing as a guaranteed visa as you still haven't got the petition approved and visa stamped in the passport.

You certainly do have a decent chances considering the fact that a large employer is petitioning for you.

This is my opinion not legal advice.

[rakitic]

You are right, there is no such thing as a guaranteed visa as you still haven't got the petition approved and visa stamped in the passport.

You certainly do have a decent chances considering the fact that a large employer is petitioning for you.

This is my opinion not legal advice.

My cap exempt petition was just filed, but Im now scared cause I just read this on visapro.com:

The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.

Although I have held H1B in the last 6 years, I have been out of the US since May 2012. So I have been out of US for more than a year. Can you please confirm if this is also a requirement???

[raghvi]

My cap exempt petition was just filed, but Im now scared cause I just read this on visapro.com:

The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.

Although I have held H1B in the last 6 years, I have been out of the US since May 2012. So I have been out of US for more than a year. Can you please confirm if this is also a requirement???

Its not a requirement. If you have spent a full year outside US you basically have an option to file under new cap (if cap still open - 2015 cap is closed) and request for fresh 6 years.

This is my opinion not legal advice.

[mady135]

Did you get your visa stamped?

My cap exempt petition was just filed, but Im now scared cause I just read this on visapro.com:

The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.

Although I have held H1B in the last 6 years, I have been out of the US since May 2012. So I have been out of US for more than a year. Can you please confirm if this is also a requirement???

My scenario was almost similar like you. I have been in US from Nov2012 (my petition was approved in Aug2012) to April 2015; now I am trying for an opportunity there. As my 6years span has not been exhausted and as of now I spent less than 1 year outside yes; can you please tell me whether:
1) I have to go for a new petition and lottery
or 2) I can get my visa stamped via the old petition under CAP exemption and request immediate start date.

My current visa is expiring on Sep 2015.

[raghvi]

My scenario was almost similar like you. I have been in US from Nov2012 (my petition was approved in Aug2012) to April 2015; now I am trying for an opportunity there. As my 6years span has not been exhausted and as of now I spent less than 1 year outside yes; can you please tell me whether:
1) I have to go for a new petition and lottery
or 2) I can get my visa stamped via the old petition under CAP exemption and request immediate start date.

My current visa is expiring on Sep 2015.

Your H1 sponsor can file a cap exempt petition to USCIS with an immediate start date on the basis of the old approved petition on which 6 Years were not completed. No need to file a new petition or go through a lottery. Once the employer's petition is approved, they would get a new I797, using which(and other supporting documents) you can book and attend visa stamping.

This is my opinion not legal advice.