H1B Cap Exempt

[vips.cool007]

Currently I am on H1B Visa, completing my 6 Years in US in November 2017 (Completed 5 years on L1B, got H1B in 2016 so got additional 1 year). No, GC has been initiated. So, I will be moving to India before that date.

Question is will I be cap exempt if after one year I want to come back to US or do I need to go through H1B lottery process? Will It make any difference in cap exempt if I go to India in July 2017 and come in July 2018? Vs Going to India in Nov 2017 and coming back in Nov 2017.
i.e. going to India before completing entire 6 years period will help in any way?

[scientist2016]

If you leave before the 6 yr. time frame and claim cap exemption, you will only get the time remaining out of the 6 yrs. If you wait 1 yr., you have the option of choosing cap exemption vs. not. If you choose cap exemption, you will only get the time remaining out of the original 6 yr. So you might be better off, applying after 1 yr., but not claiming cap exemption.

[vips.cool007]

If you leave before the 6 yr. time frame and claim cap exemption, you will only get the time remaining out of the 6 yrs. If you wait 1 yr., you have the option of choosing cap exemption vs. not. If you choose cap exemption, you will only get the time remaining out of the original 6 yr. So you might be better off, applying after 1 yr., but not claiming cap exemption.

Thanks a lot. So, you are saying even if I go out of US for 1 year i will not get full 6 years again unless I apply for fresh H1 again. ??

[raghvi]

Thanks a lot. So, you are saying even if I go out of US for 1 year i will not get full 6 years again unless I apply for fresh H1 again. ??

That is correct.

This is my opinion not legal advice.

[scientist2016]

Yes. In summary:
(1) If you have been in the US on H1b in the year prior to application date, you have no option but to go for a cap exempt petition, if applicable.
(2) If you have been out of the US and not on H1B for at least 1 year prior to application date, you can either (a) Go with a cap exempt petition, and be given only the time remaining out of the 6yrs. from the previous petition at-most OR (b) Go with a fresh application and potentially get the full 6 yrs. allowed.