Falling in regular cap or outside?

[ms81516]

Hi All,

I have applied for H1B in 2008 and got 221(g). My employer was not able to satisfy the query and after some time my petition got void.

Now I am again filing for my H1B this year and waiting for approval. I heard that people already having H1B/already counted against the cap earlier will be counted outside of the regular cap for the year in which they are filing again. Is that true? As such I have not got the visa in 2008, so does my case fall under the regular cap or outside?

Please suggest.

[kabkaba]

The petition may be filed as cap exempt (You are eligible for it). It depends on what check boxes your employer ticks in the form. The only advantage in this case is that immediate start date can be requested in stead of waiting until Oct 1 and the petition can be filed at any time.

[ms81516]

The petition may be filed as cap exempt (You are eligible for it). It depends on what check boxes your employer ticks in the form. The only advantage in this case is that immediate start date can be requested in stead of waiting until Oct 1 and the petition can be filed at any time.

Thanks Kabkaba for your quick response. Let me give you some more details and re-confirm what you suggested.

I had my H1b petition valid till 16th Sept 2010. Although I had approved petition I didn't get my VISA due to 221(g) which my employer didn't satisfy. So my case was pending. I am still working with the same employer. Can you please reply my below queries?

1. If my employer files a new petition(which will be in this case as my old petition is expired) can I get a cap-exempt referring my old petition which was counted against the quota in 2007?

2. If ans to my qustion#1 is "YES", what would be my H1B duration counted?

3. I have been in US before on B1 from August 2012 to November 2012. Will this cause any issue?

4. If I get a cap-exempt, how soon I can enter into US?

5. What should I suggest my employer to get this cap-exempt?

Appreciate your support and guidance.

[kabkaba]

Thanks Kabkaba for your quick response. Let me give you some more details and re-confirm what you suggested.

I had my H1b petition valid till 16th Sept 2010. Although I had approved petition I didn't get my VISA due to 221(g) which my employer didn't satisfy. So my case was pending. I am still working with the same employer. Can you please reply my below queries?

1. If my employer files a new petition(which will be in this case as my old petition is expired) can I get a cap-exempt referring my old petition which was counted against the quota in 2007? -- Yes

2. If ans to my qustion#1 is "YES", what would be my H1B duration counted? -- Time spent in the US in the H1 or L1 status.

3. I have been in US before on B1 from August 2012 to November 2012. Will this cause any issue? -- No problem

4. If I get a cap-exempt, how soon I can enter into US? -- After petition approval and Visa issuance.

5. What should I suggest my employer to get this cap-exempt? -- Suggest that cap-exempt is possible and have their lawyers look into the possibility.

Appreciate your support and guidance.

See above.