Is unused expired petition cap exempt?

[SKDS160]

Hello,

If a H1B petition approved last year and applicant never joined the employer and remained in H4 status till now. Can the applicant find a new employer and transfer his H1 petition as CAP EXEMPT?

I am getting a mixed answers on this as to how a person is considered to be cap "Counted" is not clearly defined. Some people say you have to work with original petitioner for some time in order to be considered "counted" in a cap. Since beneficiary never worked with original employer, he will not be considered as Cap Exempt this year.

Please advise.

[raghvi]

Hello,

If a H1B petition approved last year and applicant never joined the employer and remained in H4 status till now. Can the applicant find a new employer and transfer his H1 petition as CAP EXEMPT?

I am getting a mixed answers on this as to how a person is considered to be cap "Counted" is not clearly defined. Some people say you have to work with original petitioner for some time in order to be considered "counted" in a cap. Since beneficiary never worked with original employer, he will not be considered as Cap Exempt this year.

Please advise.

How was H1 filed ? As COS or as Consular process?

[SKDS160]

How was H1 filed ? As COS or as Consular process?

It was filed as COS but applicant maintined the H4 by leaving US before Oct 1 and reenter on Oct 4 showing H4 visa.

[raghvi]

It was filed as COS but applicant maintined the H4 by leaving US before Oct 1 and reenter on Oct 4 showing H4 visa.

I would say it would be still cap exempt, irrespective the person joined and worked for the original petitioner or not.

This is my opinion not legal advice.