Unused Expired H1B

[ashwinifly]

Hi raghvi,
Apologies for not having updated you on this, but my H1 was approved until October 2007. My current employer filed for a recapture of h1 time on April 2014 and it was approved. Currently, I am working in the US.
So, I'm really not sure about the 6 year time frame perception.

Thanks.

Hi rjr2007,
I am in similar situation where my H1 was approved until Oct 2010 and I never travelled on H1. This is Dec 2015, and I am in US on L1 since Dec 2013.
Was your employer able to file for COS ? or was it a new petition (cap-exempt) ?

Is there any link of USCIS website which talks about it ? I see lot of conflicting opinions on this (mostly negative though)

[Stranger33]

Hi raghvi,
Apologies for not having updated you on this, but my H1 was approved until October 2007. My current employer filed for a recapture of h1 time on April 2014 and it was approved. Currently, I am working in the US.
So, I'm really not sure about the 6 year time frame perception.

Thanks.

I am in similar situation and badly need help. I did my masters from US, and my H1B was filed by the US employer in April 2007. I visited India in Jan 2008 and got the H1B visa stamped. The visa stamp says "Issue Date - 17Jan2008" and "Expiry Date - 30Sep2010". I was in US till Sept 2009 and then returned to India to take up a job. Since then I have been in India and never re-visited US. Now I am keen to find a job in US and move back. If you consider the date of first H1B petition filed and approved, I have only used 2.5yrs of H1B. But I have been outside of US since almost 6.5yrs. My question is that if I find a job in US now, will I fall under the cap? My intention is to use balance of the 6 yrs visa (i.e. 6 - 2.5 = 3.5yrs), and not to go for full 6 year extension. I am asking this question as I read conflicting posts, where some have mentioned that after 6 years of being away from US, you fall under cap again, and some have mentioned that you don't.

Appreciate your help in this matter, as I am very keen to move back and time is very critical for me.

Also, if you suggest that I will again be a part of the H1B cap, then in that case do I fall under the general cap (of 65,000) or the masters cap (of 25,000)?

Thanks.

[MMANNEM]

the query is regarding with my H1B petition filed in 2007. I have filed H1B petition through an US employer during 2007 and the petition got picked up through lottery system in 2007. But as the employer does not have strong documentation/projects with him, he did hold me from appearing the Indian US embassy for the US Visa interview and hence didn’t appear for the Visa. However, later in 2010, he did send me an email stating the USCIS wanted all the old petitions to be cancelled. Not sure whether he did cancelled my petition or not. Also, during 2010 Jan- April traveled to US on B1/B2 through company and that visa is valid until 2019.

Here,

1) I would like to know whether my 2007 approved H1B petition could be reopened now under the cap exemption? And could it be re-opened through different employers? I’ve been hearing different views from different attorneys as my 2007 petition can be valid until August 2016, and can get a new i797B re-approved with premium or regular processing through cap exemption.

2) Could my old petition still be re-opened ? or should I again go for fresh filing for the year FY16-17?

.

[krautela]

**** **.com has said "yes" for a case like yours.

I am in similar situation and badly need help. I did my masters from US, and my H1B was filed by the US employer in April 2007. I visited India in Jan 2008 and got the H1B visa stamped. The visa stamp says "Issue Date - 17Jan2008" and "Expiry Date - 30Sep2010". I was in US till Sept 2009 and then returned to India to take up a job. Since then I have been in India and never re-visited US. Now I am keen to find a job in US and move back. If you consider the date of first H1B petition filed and approved, I have only used 2.5yrs of H1B. But I have been outside of US since almost 6.5yrs. My question is that if I find a job in US now, will I fall under the cap? My intention is to use balance of the 6 yrs visa (i.e. 6 - 2.5 = 3.5yrs), and not to go for full 6 year extension. I am asking this question as I read conflicting posts, where some have mentioned that after 6 years of being away from US, you fall under cap again, and some have mentioned that you don't.

Appreciate your help in this matter, as I am very keen to move back and time is very critical for me.

Also, if you suggest that I will again be a part of the H1B cap, then in that case do I fall under the general cap (of 65,000) or the masters cap (of 25,000)?

Thanks.

Hi Stranger33,

I came cross this article. This talk about the scenario similar to yours. Please read it and let me know what you think. Or since posting your article you had any additional experiences related to topic, please share it.



I know that there is a burning question in every body’s mind who had H1B in the past and who had not utilized their maximum admissible period of 6 years and want to know whether they are cap exempt or not. The below post explains the Aytes memo in detail regarding the H1B Remainder option eligibility.



Following is the Aytes memo



H-1B “Remainder” Time

USCIS officers shall comply with the following guidance regarding requests for time in H-1B status on the behalf of an alien who has not exhausted his or her H-1B maximum period of admission and who has been absent from the United States for longer than a year.

Section 214(g)(4) of the INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” Section 214(g)(7) of the INA provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.



In H-1 Recapture of Time Spent Outside the United States, AAO Adopted Decision 06-0001 (Sept. 2, 2005), USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.

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.



NOTE:

This new “remainder” policy does not affect an H-1B alien who was previously admitted to the United States, but who has not been absent from the United States for more than one year. Such an alien would not be eligible for a new six-year period of admission and therefore may only seek readmission based on time remaining against his or her initial six-year period of admission.

Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status.

For example, an alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e., a total of one year.

If the alien was previously counted toward the H-1B numerical limitations in relation to the time that has accrued against the six-year maximum period of admission, the alien would not be subject to the H-1B cap.

If the alien was not previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien will be counted against the H-1B cap unless he or she is eligible for another exemption.

Alternatively, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year.

For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension.

“New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See Sections 214(g)(1)and 214(g)(5) of the INA.

[mulkanand]

Need help with my situation

Hello experts,

I was in the US from 2010-2015 initially went on L1b and in 2012 switched to H1b. I understand that 6 years period is counted towards both categories together meaning I would have been allowed to stay back in the US until 2016 had I decided not to leave the US. Now since I didn't exhaust my 6 years limit and I am not in the US from more than a year, if I file for H1b extension against "Remainder" period left in my H1b will I be eligible to get only 1 year of extension OR the 6 years period would be counted from 2012 (since I got H1b in 2012) and I would be eligible to get 3 years extension?

I am not providing exact month details to keep the query simple.

Thanks in advance!!

[Karti664]

Old Unused Expired H1B

My H1B Approval notice approved Date shows January 2007 - january 2010 for Company A

I was in USA from June-2008 to June - 2009 on H1B and went back to my Country and joined a new employer - B and was working outside of USA for 6years. I didn't renew my H1B after jan 2010 nor I used fully.

Now I am in USA on L1B with company B from Aug-2015 and i can be here in USA till Aug-2018.

Qsn 1
Do you think I can use Old H1B remaining period to stay in USA which is (6Years - June 2008,2009 Stay+L1B 2.5 years Stay)
Qsn 2
If Qsn 1 answer is yes, How will I be transferring my H1B to Company B. What will be the process involved as H1B filed through Company A in 2006-2007

[ankurstp]

Unused Expired H1B

I had a H1B from Jan13 to May14 but I never travelled to USA. Now I am actively looking for Job in USA. I have few queries.

1. As I had H1B which was unused and expired, Can my new employer sponsor/apply and get me H1B without getting into the pool?

2. How much time it will take to get H1B visa without getting into the pool?


Thanks in advance.

[rakherockz]

Hi,

I'm working for a hospital on cap-exempt H1B from April, 2018. A consulting firm applied H1B in the lottery and it got picked and approved. I have the soft copy of cap H1B approved I797 petition. It is approved from October 1, 2020 to September 30, 2021. Can I transfer the cap approved H1B petition to another private company after October 1, 2020 without working for the consulting firm who applied it even after the is expired i.e. September 30, 2021?

Thanks in advance.