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Claiming unused H1 time under cap exempt after 6 yrs of I797 issue date

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  • Claiming unused H1 time under cap exempt after 6 yrs of I797 issue date

    Hi,

    I am currently in US on L2 (dependent of my spouse) but I was here on H1B twice earlier.

    The dates are as below:
    i) I797 first petition date: 1 Oct, 2008 - 18 Jun, 2011
    ii) I797 received after extension: 13 Jun, 2011 - 18 Aug 2013

    Travel dates on H1 visa:
    i) 12 Jul, 2010 - 11 July, 2011
    ii) 2 Apr, 2012 - 29 Dec, 2012

    Now I want to file for H1 as cap exempt (out of cap) to reclaim the unused years on H1.
    I have been told that the same can be done only within the 6 year period from the date of the first I797 (which means I only have a month more to go to file out of cap). I have also read a few contradictions to this rule.

    Can someone please clarify if I can claim my unused years on H1 as cap exempt only until Sept of this year?

    Thanks!

  • #2
    Originally posted by been123 View Post
    Hi,

    I am currently in US on L2 (dependent of my spouse) but I was here on H1B twice earlier.

    The dates are as below:
    i) I797 first petition date: 1 Oct, 2008 - 18 Jun, 2011
    ii) I797 received after extension: 13 Jun, 2011 - 18 Aug 2013

    Travel dates on H1 visa:
    i) 12 Jul, 2010 - 11 July, 2011
    ii) 2 Apr, 2012 - 29 Dec, 2012

    Now I want to file for H1 as cap exempt (out of cap) to reclaim the unused years on H1.
    I have been told that the same can be done only within the 6 year period from the date of the first I797 (which means I only have a month more to go to file out of cap). I have also read a few contradictions to this rule.

    Can someone please clarify if I can claim my unused years on H1 as cap exempt only until Sept of this year?

    Thanks!
    The law says within 6 Years of being cap counted OR within 6 Years of last held H1 status. As you were last in H1 status till 29 Dec 2012, your employer can potentially claim cap exemption till 29 Dec 2018.

    This is my opinion not legal advice.

    Comment


    • #3
      Originally posted by raghvi View Post
      The law says within 6 Years of being cap counted OR within 6 Years of last held H1 status. As you were last in H1 status till 29 Dec 2012, your employer can potentially claim cap exemption till 29 Dec 2018.

      This is my opinion not legal advice.
      Thanks for your response!
      However, my consultant seems to believe that its only within 6 years of being cap counted.

      If you can post a source for your reply, it will be highly appreciable.

      Thanks!

      Comment


      • #4
        Originally posted by been123 View Post
        Hi,

        I am currently in US on L2 (dependent of my spouse) but I was here on H1B twice earlier.

        The dates are as below:
        i) I797 first petition date: 1 Oct, 2008 - 18 Jun, 2011
        ii) I797 received after extension: 13 Jun, 2011 - 18 Aug 2013

        Travel dates on H1 visa:
        i) 12 Jul, 2010 - 11 July, 2011
        ii) 2 Apr, 2012 - 29 Dec, 2012

        Now I want to file for H1 as cap exempt (out of cap) to reclaim the unused years on H1.
        I have been told that the same can be done only within the 6 year period from the date of the first I797 (which means I only have a month more to go to file out of cap). I have also read a few contradictions to this rule.

        Can someone please clarify if I can claim my unused years on H1 as cap exempt only until Sept of this year?

        Thanks!
        You can fill till 6 yrs from last H1 held status i-e 2018

        Comment


        • #5
          Just to add I have spent more than a year, that is, from dec 2012 until apr 2014 before I returned to US. I hope there is no clause that says that you should not have spent more than a year outside US and this does not change anything.

          Comment

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