H1 out of cap eligibility

[praveen44]

Hi,

I have a query on my eligibility for a H1B work permit for USA. I wanted to specifically know if I would be eligible for an Out of Cap H1B visa.

The context:
I had worked with company A from June 2006 to July 2009. During this period, the company had filed a petition in May 2008 and after the lottery, I got my H1B work permit visa stamped in Nov 2008 that was valid till June 2011. I had quit the company due to personal reasons in July 2009 and hence did not travel to the US utilizing the visa.
For a short period of time from August 2009 to March 2010, I had worked in a family owned business.
From April 2010 to March 2011, I was not working. (Pursuing my higher education in this time).
Post MBA, I had re-joined company A in June 2011.

Given the above context, I would like to know if I would be eligible now to obtain an Out of Cap H1B visa through company A.

Thanks for your help in advance.

[raghvi]

Hi,

I have a query on my eligibility for a H1B work permit for USA. I wanted to specifically know if I would be eligible for an Out of Cap H1B visa.

The context:
I had worked with company A from June 2006 to July 2009. During this period, the company had filed a petition in May 2008 and after the lottery, I got my H1B work permit visa stamped in Nov 2008 that was valid till June 2011. I had quit the company due to personal reasons in July 2009 and hence did not travel to the US utilizing the visa.
For a short period of time from August 2009 to March 2010, I had worked in a family owned business.
From April 2010 to March 2011, I was not working. (Pursuing my higher education in this time).
Post MBA, I had re-joined company A in June 2011.

Given the above context, I would like to know if I would be eligible now to obtain an Out of Cap H1B visa through company A.

Thanks for your help in advance.

Yes it could be possible.

This is my opinion not legal advice.

[praveen44]

thanks for the reply.

I got to know there is a 6 years validity for the I797 petition but I am confused on which date the 6 years is calculated from.

In my I797 petition, there are three different dates-
Receipt date: April 28 2008
Notice Date: May 15 2008
Approval Notice Validity: Oct 1 2008 to June 11 2011.

I presume it should be Oct 1 2008 but I just want to reconfirm from experts here.

[raghvi]

There is ambiguity around this. I would say one is cap exempt if either they were on H1 in US in last 6 years and 6 Years of stay in US has not completed
OR
they were cap counted within last 6 H1 caps (2009, 10, 11, 12, 13, 14) and 6 Years stay in US hasnt completed.

Other than that I would give it a 50/50 chance based on how USCIS views it.

This is my opinion not legal advice.