H1B petition Expired

[shervin143]

Well, I guess I didn't put that correctly in my previous reply. Not using the approved petition it is not an issue. If the petition effective date is not within the last 6 years, then you cannot use that petition to get exempt from CAP. One H1B CAP is valid only for 6

Hello Shervin,

I need some clarification on this. In this line quoted above, you've said that one cannot be cap exempt if they have not "used" previous H1CAP and is more than 6 years. Now is this because of having "not used" or because of 6 years passing?

I am asking this, in relation to my situation below. Please guide.

I first got my H1b petition approved in Jun 2004. I made 2 visits to US

4/Dec/2005 to 30/Jan/2006
24/Sep/2006 to 2/Dec/2006

No further travel. Visa expired in Feb 2007. I changed employer.

I got married in Jan 2012 and my wife is L1 holder. I applied for L2 and I got it last week.

My question is, if I apply for a fresh H1b, am I cap exempt or not?

[srisoftram]

Hi,

My H1B petition was filed on April 2008 cap.

I have never gone for stamping until today; hope this is cap exempt?

If cap- exempt? need to file H1B again now to get stamping?

if so, Do i have to pay again for H1B filing though it is cap-exempt?

Kindly clarify me.

Thanks,
Sriram

[shervin143]

I have never gone for stamping until today; hope this is cap exempt?
>>> Stamping and CAP{ exempt are two different things. Do some basis reading on the forum about what a CAP exempt petition is.

If cap- exempt? need to file H1B again now to get stamping?
>>> You need a valid petition to go for the stamping. Do yuo have a valid H1B petition and are you going to work for the same employer in U.S. If not, you have to ask your U.S employer to file a new petition using the CAP from your previous H1B petition.

if so, Do i have to pay again for H1B filing though it is cap-exempt?
>>> Yes, H1B petition fee need to be paid and it should be paid by the employer. It is illegal if you pay your own H1B filing fee.

[srisoftram]

shervin,

another doubt

1) An employer can file anytime even after this cap is over for 2013 this year if petition is cap-exempt or to be filed before the current year cap is closed.

2) Is it mandatory I should go for stamping to my home country or can i get stamping from the country where I am working now (on workpermit in UK).

Thanks,
Sriram

[akhil_agarwal1]

1) An employer can file anytime even after this cap is over for 2013 this year if petition is cap-exempt or to be filed before the current year cap is closed.
--Your employer can file anytime irrespective of the 2013 cap.

2) Is it mandatory I should go for stamping to my home country or can i get stamping from the country where I am working now (on workpermit in UK).
--As per my understanding you should be able to take a visa interview in UK.

[shervin143]

1) An employer can file anytime even after this cap is over for 2013 this year if petition is cap-exempt or to be filed before the current year cap is closed.
>>> CAP Exempt means, you are exempt from the current CAP because you already have a CAP number from a previous year. You don't have to file under the 2013's CAP.

2) Is it mandatory I should go for stamping to my home country or can i get stamping from the country where I am working now (on workpermit in UK).
>>> You can get it stampoed in U.K. If this is your first time H1B stamping and if the VO is unable to validate your academic certificates, they he/she might ask you to go back to your home country to get the H1B stamped.

[silverprince]

Well, I guess I didn't put that correctly in my previous reply. Not using the approved petition it is not an issue. If the petition effective date is not within the last 6 years, then you cannot use that petition to get exempt from CAP. One H1B CAP is valid only for 6

Shervin you were wrong. My employer applied for H1b and got it. To clarify, h1b petition is valid "if the person is in US with H1b status within the last 6 years" and not "6 years from petition approve date"

[curious.mainframes]

Hi shervin143,
You have mentioned that a person would be able to use the cap exemption if he files for H1 with Cap exemption with in 6 years of validity of petition.

I got a H1B petition working with Indian subsidary of US company A from 4th Oct 2004 till 15th July 2007. I got my H1B Visa stamped on 12th April 2005 and was

valid till 15th July 2007. How ever due to some circumtances , I never used this H1B to travel to US and was expired in July 2007. I have joined Company B in

2006.

In Feb 2008, My employer B filed B1 (visitor visa). I got my visitor visa B1 stamped and travelled to US for 1.5 months and then again in sept 2011 for 1 month. I was

back in Oct 2011.

Now my employer B wants to file H1B visa for me. Can they file the cap exempt visa referencing my unused H1 now FY13 since all the cap for FY13 is been

exhausted? Or do I have to wait until Oct 2013 to file a Fresh H1?

Petition Validity : Oct 4 2004 to 15th July 2007.
H1B visa stamped on 12th April 2005. Valid till July 15, 2007.
Can my company file H1B for me using the Cap exempt as maximum 6 years validity using my expiry date should be July 15,2013?

[silverprince]

Hi shervin143,
You have mentioned that a person would be able to use the cap exemption if he files for H1 with Cap exemption with in 6 years of validity of petition.

This is incorrect. A person would be able to use cap exemption if he files for Cap exempt H1 within 6 years of the date on which he last held H1 status (inside US). Validity date of petition doesnt matter.

Coming to your question, since you never had h1b status and the petition also expired, your employer cannot file cap exempt h1.

[Ram2929]

This is incorrect. A person would be able to use cap exemption if he files for Cap exempt H1 within 6 years of the date on which he last held H1 status (inside US). Validity date of petition doesnt matter.

Coming to your question, since you never had h1b status and the petition also expired, your employer cannot file cap exempt h1.

Hi silverprince,

You mean to say we cannot file cap exempt H1b if we didn't travel to USA on H1b on that old petition?

I had my petition filed in the year 2010 and I got the approval notice(I797), but the visa was denied when I went for the visa interview as my employer failed to submit some documents.

Now, I found one more employer who is ready to file a H1b visa for me.Can my new H1b petition be cap exempt now?

To summarize,
->My old H1b petition was filed in the year 2010
->I797 was valid for one year..i.e until 2011 march approximately
-> visa was rejected when I went for the visa interview in 2010 october.

Can my new employer file a cap exempt H1b visa for me?


Thanks in advance