H1B CAP Exempt

[snehanew]

I was in US with an H1B visa for 4 months in 2010 & then came to india & from then on i have been in India.Can i file a CAP exempt petition with a new employer.My petition was filed in 2008 & then stamping done in 2009.
I went thru a thread which states if i am out of US for more than a year then i cannot file a CAP exempt petition.

see below thread below

The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.
Can anybody please clarify?

[raghvi]

I was in US with an H1B visa for 4 months in 2010 & then came to india & from then on i have been in India.Can i file a CAP exempt petition with a new employer.My petition was filed in 2008 & then stamping done in 2009.
I went thru a thread which states if i am out of US for more than a year then i cannot file a CAP exempt petition.

see below thread below

The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.
Can anybody please clarify?

In my opinion you would be cap exempt:

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13813.html

There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:


· be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or
· seek to be admitted as a “new” H-1B alien subject to the H-1B cap.


This is my opinion not legal advice.

[Dawnz]

In my opinion you would be cap exempt:

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13813.html

There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:


· be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or
· seek to be admitted as a “new” H-1B alien subject to the H-1B cap.


This is my opinion not legal advice.

I have a connected question to the main thread, just curious:

Let's Say, My H1B is approved in September, and for some reason Employer withdraws the application in October. In the mean time, no salary is paid and /or I have been out of work. The next time around, would my application be considered cap exempt?

I am trying to get pregnant and may not be able to work in october.

Thank you for your replies and suggestions.

[snehanew]

In my opinion you would be cap exempt:

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13813.html

There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:


· be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or
· seek to be admitted as a “new” H-1B alien subject to the H-1B cap.


This is my opinion not legal advice.

This means i can avail the balance 56 months or i have to apply for this year H1B & go thru the lottery system?Is my understanding correct?

[raghvi]

This means i can avail the balance 56 months or i have to apply for this year H1B & go thru the lottery system?Is my understanding correct?

You need not be part of the cap this year. You need not go through the lottery (if there is lottery).

This is my opinion not legal advice.

[snehanew]

You need not be part of the cap this year. You need not go through the lottery (if there is lottery).

This is my opinion not legal advice.

Thank you