Cap exempt for new H1b

[hk212121]

Hi,

Last year a company in Mass filed an H1b petition for me (through Master's quota as I have a master's degree form an American university). The petition got approved (effective from Oct 1, 2013) - but as the company did not have any projects after that, I did not go and get a H1b stamping. My wife has an H1b and I have a H4 visa. So I am planning to go to the US with my wife next month and meet representatives of another company in Virginia who are willing to sponsor my H1b. Here I will go for COS - from H4 to H1b. So my questions is - am I already counted towards the H1b quota for next year as I have a valid H1b petition (but not the H1b stamping)?

[raghvi]

Hi,

Last year a company in Mass filed an H1b petition for me (through Master's quota as I have a master's degree form an American university). The petition got approved (effective from Oct 1, 2013) - but as the company did not have any projects after that, I did not go and get a H1b stamping. My wife has an H1b and I have a H4 visa. So I am planning to go to the US with my wife next month and meet representatives of another company in Virginia who are willing to sponsor my H1b. Here I will go for COS - from H4 to H1b. So my questions is - am I already counted towards the H1b quota for next year as I have a valid H1b petition (but not the H1b stamping)?

Yes you are already cap counted so you need not file new H1 in 2014. You can use the approved H1 petition, and any employer can file a cap exempt petition for you with immediate start date, if approved, you can start immediately and wouldn't need to wait till Oct 2014 to start working.

This is my opinion not legal advice.

[hk212121]

Yes you are already cap counted so you need not file new H1 in 2014. You can use the approved H1 petition, and any employer can file a cap exempt petition for you with immediate start date, if approved, you can start immediately and wouldn't need to wait till Oct 2014 to start working.

This is my opinion not legal advice.

Thanks!!! Another related question - My original H1b petition which I have mentioned in my earlier post was filed when I was in India. It got approved but I did not get the stamping as I had mentioned in that post. Now I have a H4 visa, as my wife has a H1b visa and I plan to apply for COS from H4 to H1b. It seems I won't be counted towards the cap as I was already counted.

Now - the approved H1b petition did not have an I-94 section as the petition was filed when I was in India (outside the US). So I had to take a stamping before I could enter the US (which I did not). So if I go for COS now (I will be in the US while filing a COS so that I will have the stamped H4 visa and the I-94 when I enter the US on H4 visa) and use my approved petition (one without I-94 part) - to prove that I won't be counted against the cap - will I be able to work on the newly approved H1b petition (in case that is approved) without getting the stamping for the new H1b, unless of course I leave the US in which case I definitely do have to get the stamping?

In other words, will using the non-I-94 H1b visa (one filed when I was outside the US) to be not counted against the cap - in any way force me to get a H1b stamping even though I won't be leaving the US for 2 years after that (COS from H4 to H1b will be filed when I am in the US - with me providing the I-94 I receive when I enter the US on H4 visa)?

[hk212121]

Yes you are already cap counted so you need not file new H1 in 2014. You can use the approved H1 petition, and any employer can file a cap exempt petition for you with immediate start date, if approved, you can start immediately and wouldn't need to wait till Oct 2014 to start working.

This is my opinion not legal advice.

Thanks!!! Another related question - My original H1b petition which I have mentioned in my earlier post was filed when I was in India. It got approved but I did not get the stamping as I had mentioned in that post. Now I have a H4 visa, as my wife has a H1b visa and I plan to apply for COS from H4 to H1b. It seems I won't be counted towards the cap as I was already counted.

Now - the approved H1b petition did not have an I-94 section as the petition was filed when I was in India (outside the US). So I had to take a stamping before I could enter the US (which I did not). So if I go for COS now (I will be in the US while filing a COS so that I will have the stamped H4 visa and the I-94 when I enter the US on H4 visa) and use my approved petition (one without I-94 part) - to prove that I won't be counted against the cap - will I be able to work on the newly approved H1b petition (in case that is approved) without getting the stamping for the new H1b, unless of course I leave the US in which case I definitely do have to get the stamping?

In other words, will using the non-I-94 H1b visa (one filed when I was outside the US) to be not counted against the cap - in any way force me to get a H1b stamping even though I won't be leaving the US for 2 years after that (COS from H4 to H1b will be filed when I am in the US - with me providing the I-94 I receive when I enter the US on H4 visa)?

[raghvi]

Thanks!!! Another related question - My original H1b petition which I have mentioned in my earlier post was filed when I was in India. It got approved but I did not get the stamping as I had mentioned in that post. Now I have a H4 visa, as my wife has a H1b visa and I plan to apply for COS from H4 to H1b. It seems I won't be counted towards the cap as I was already counted.

Now - the approved H1b petition did not have an I-94 section as the petition was filed when I was in India (outside the US). So I had to take a stamping before I could enter the US (which I did not). So if I go for COS now (I will be in the US while filing a COS so that I will have the stamped H4 visa and the I-94 when I enter the US on H4 visa) and use my approved petition (one without I-94 part) - to prove that I won't be counted against the cap - will I be able to work on the newly approved H1b petition (in case that is approved) without getting the stamping for the new H1b, unless of course I leave the US in which case I definitely do have to get the stamping?

In other words, will using the non-I-94 H1b visa (one filed when I was outside the US) to be not counted against the cap - in any way force me to get a H1b stamping even though I won't be leaving the US for 2 years after that (COS from H4 to H1b will be filed when I am in the US - with me providing the I-94 I receive when I enter the US on H4 visa)?

Your employer would be filing for a H4 to H1 COS. If this is approved, you would receive a new I-94 at the bottom of the approved petition and that would be the valid I-94 for you, the H4 I-94 would no longer be valid once COS to H1 is approved.

This is my opinion not legal advice.