Cap Exempt or Not ?

[chetan_bhandari]

Hello All,

I was issued an H1b on Sep 2006 and travelled to US in Feb 2007. I got the extension as well in 2009 when changing companies and got approval till Feb 2012 .
However when changing companies in 2010 again I got an RFE in Sep 2010 and denial in Nov 2010. I returned back to my home country after a week and have never been to US since then.

My question is if I apply for H1b now, will I be considered in the normal quota or Cap-exempt quota (as there is still time remaining on my previous H1 ) ? Can I still revive my old H1b ?

Thanks in advance.

[raghvi]

Hello All,

I was issued an H1b on Sep 2006 and travelled to US in Feb 2007. I got the extension as well in 2009 when changing companies and got approval till Feb 2012 .
However when changing companies in 2010 again I got an RFE in Sep 2010 and denial in Nov 2010. I returned back to my home country after a week and have never been to US since then.

My question is if I apply for H1b now, will I be considered in the normal quota or Cap-exempt quota (as there is still time remaining on my previous H1 ) ? Can I still revive my old H1b ?

Thanks in advance.

An employer can potentially file a Cap Exempt H1 for you. When was your last valid paystub generated while on H1? Do you have the approved petition for that employer?

This is my opinion not legal advice.

[chetan_bhandari]

An employer can potentially file a Cap Exempt H1 for you. When was your last valid paystub generated while on H1? Do you have the approved petition for that employer?

This is my opinion not legal advice.

Thanks Raghvi for the reply. My last generated paystub was Oct 2010 with the employer for which the H1 transfer was ongoing (and failed). The last good employer paystub was however in April 2010. Yes I do have the approved petition for the last employer with Visa validity till Feb 2012. Pls advise.

[chetan_bhandari]

An employer can potentially file a Cap Exempt H1 for you. When was your last valid paystub generated while on H1? Do you have the approved petition for that employer?

This is my opinion not legal advice.

Hi Raghvi, I also found the below article -

http://www.visapro.com/Immigration-Articles/?a=1090&z=48

that states that - 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. .

The last part also states that the h1b holder must not have spend a full year outside the US. Does this still apply ?

Thanks.

[raghvi]

Hi Raghvi, I also found the below article -

http://www.visapro.com/Immigration-Articles/?a=1090&z=48

that states that - 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. .

The last part also states that the h1b holder must not have spend a full year outside the US. Does this still apply ?

Thanks.

When you say your pay stub was generated but the transfer to that employer was refused, it technically means that you were not authorized to work for that employer. You have to see last valid paystub of employer whose H1 petition was approved.

Also, read around for H1B Remainder Time. It indicates that one who has not exhausted the entire 6 Year limit on H1 can file for regaining the time on it, provided, its either within 6 Years of last held H1 status OR within 6 Years of Cap approval.

This is my opinion not legal advice.

[chetan_bhandari]

When you say your pay stub was generated but the transfer to that employer was refused, it technically means that you were not authorized to work for that employer. You have to see last valid paystub of employer whose H1 petition was approved.

Also, read around for H1B Remainder Time. It indicates that one who has not exhausted the entire 6 Year limit on H1 can file for regaining the time on it, provided, its either within 6 Years of last held H1 status OR within 6 Years of Cap approval.

This is my opinion not legal advice.

Hi Raghvi, Thanks a lot of the info. I actually found the following USCIS link that supports what you just said.

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

One quick query - When you say, only the last 'valid' paystub would be considered , which in my case is March and April 2010, will my time in States from May to Oct be also added to remaining time as that was when the transfer was actually going on and not approved by USCIS. Also only the last paystubs and I-797 (of approved employer) would be required for me to give to new employer that wishes to sponsor my visa for future H1b transfer ?
Thanks again and really appreciate your help in this matter.

[raghvi]

Hi Raghvi, Thanks a lot of the info. I actually found the following USCIS link that supports what you just said.

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

One quick query - When you say, only the last 'valid' paystub would be considered , which in my case is March and April 2010, will my time in States from May to Oct be also added to remaining time as that was when the transfer was actually going on and not approved by USCIS. Also only the last paystubs and I-797 (of approved employer) would be required for me to give to new employer that wishes to sponsor my visa for future H1b transfer ?
Thanks again and really appreciate your help in this matter.

Seems you were out of status from May till Oct.

Yes only last valid paystub and approval notice copies require to initiate the transfer process.

This is my opinion not legal advice.