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Query on H1B Cap Exempt

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  • Query on H1B Cap Exempt

    Hi All,
    I have used ~2 Yrs from my 1st H1B Approved in 2002, expired in 2004 &
    and used 3 Yrs from my 2nd H1B approved in 2005, extended till 2010.

    Can I come under H1B Cap Exempt?
    If Yes, Can I use my approved 1st H1B or 2nd H1B for Cap Exempt H1B Application. Please suggest.

    Thanks & Regards"
    A Monty (Bangalore, India)

  • #2
    Since the last petition expired within the last 6 years (2010), you should be eligible for cap-exempt petition. But, you will only get 6 years minus the time spent in the US in H1 status.

    If the 2005 petition was filed as cap-subject and if there was a gap of more than 1 year between 2002-2004 stay and 2005 petition, the 2002-2004 period will not count.
    This is my opinion and not legal advice.

    Comment


    • #3
      Originally posted by kabkaba View Post
      Since the last petition expired within the last 6 years (2010), you should be eligible for cap-exempt petition. But, you will only get 6 years minus the time spent in the US in H1 status.

      If the 2005 petition was filed as cap-subject and if there was a gap of more than 1 year between 2002-2004 stay and 2005 petition, the 2002-2004 period will not count.
      Hi,
      Thank you for answering my query.
      There was more than 2 Yrs Gap in my Travel on 2nd H1B (Cap Subject, approved in 2005). On 2nd H1B I was in US for ~ 3 Years and it expired in July 2010.
      On 1st H1B (Cap subject, approved in 2002) which I have stayed ~ 2 Yrs which was expired in 2004 Dec.
      So, Can I use the 1st H1B or 2nd H1B as Cap Exempt.
      Kindly let me know.
      Regards"
      AMonty (Bangalore, India)

      Comment


      • #4
        The most recent petition (that expired in 2010) will be used to claim cap-exemption. Since there was a gap of more than one year between 2002-2005 and since 2005 petition was filed as subject to annual cap, the previous period (2002-2004) will not be counted in calculating the remainder period.
        This is my opinion and not legal advice.

        Comment


        • #5
          You can come again on H-1B and be cap-exempt as you have had H-1B in the last 6 years. The question is how much time do you have left. You need to give more information. The second time you can in 2005, did you go through the cap or were you cap exempt?
          Last edited by lisaanderson; 07-25-2013, 08:03 AM.

          Comment


          • #6
            Originally posted by kabkaba View Post
            The most recent petition (that expired in 2010) will be used to claim cap-exemption. Since there was a gap of more than one year between 2002-2005 and since 2005 petition was filed as subject to annual cap, the previous period (2002-2004) will not be counted in calculating the remainder period.
            Thank you very Much.

            Regards"
            AMonty

            - - - Updated - - -


            Hi,
            Here is the detail
            1st H1B (Cap, Approved in 2002) was in US for ~ 2 Years [Expired in 2005, stayed till Mid 2004].
            2nd H1B (Cap, Approved in 2005) was in US for ~ 3 Years [Extention expired in 2010, stayed till Mid 2010]

            Hope, I can use my 2nd H1b for Cap Exempt visa.

            Regards"
            AMonty [Bangalore, India]

            Comment

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