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Regarding an expired H1B under CAP EXEMPT !

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  • Regarding an expired H1B under CAP EXEMPT !

    Hello All,

    I am having an expired H1B visa for which the petition was filed in year 2007 and stamping was done in 2008. I have never used the visa and the visa as well as the petition got expired in 2010.

    Until now I was under a ( probably mistaken ) understanding that H1 B can be reused only if the petition was approved within last 6 years and some sources even suggest that the petition must have been valid in last 6 years, so there does seem to be different kinds of interpretations to the six year rule and finally I am seeing in some posts that the 6 years rule is only applicable as far as the time left on your petition is concerned and is not applicable in any other way. I came to know through various sources in internet and also here on immihelp.com that it is possible to use expired h1b at anytime if you have unused time left in it.

    In this post I want to see if there is a clear cut understanding about this issue. Is there a definitive answer to this question.

    I am trying to get in touch with someone who has knowledge about it w.r.t filing under a CAP EXEMPT category.

    I would like to get connected with people in similar situation to collectively resolve this issue. I would like to request people in similar situation may send me a Private message.


    Thanks

  • #2
    Originally posted by forh1b View Post
    Hello All,

    I am having an expired H1B visa for which the petition was filed in year 2007 and stamping was done in 2008. I have never used the visa and the visa as well as the petition got expired in 2010.

    Until now I was under a ( probably mistaken ) understanding that H1 B can be reused only if the petition was approved within last 6 years and some sources even suggest that the petition must have been valid in last 6 years, so there does seem to be different kinds of interpretations to the six year rule and finally I am seeing in some posts that the 6 years rule is only applicable as far as the time left on your petition is concerned and is not applicable in any other way. I came to know through various sources in internet and also here on immihelp.com that it is possible to use expired h1b at anytime if you have unused time left in it.

    In this post I want to see if there is a clear cut understanding about this issue. Is there a definitive answer to this question.

    I am trying to get in touch with someone who has knowledge about it w.r.t filing under a CAP EXEMPT category.

    I would like to get connected with people in similar situation to collectively resolve this issue. I would like to request people in similar situation may send me a Private message.


    Thanks
    You need to have held H1 status in the past 6 yrs., or the petition valid in the past 6 yrs to be able to file a cap-exempt petition.
    Just an opinion; Not legal advice.

    Comment


    • #3
      Originally posted by scientist2016 View Post
      You need to have held H1 status in the past 6 yrs., or the petition valid in the past 6 yrs to be able to file a cap-exempt petition.
      I guess that was the prevailing opinion until that claim was disputed. I see it in some posts on some threads here on this website and as well as in some articles on some other websites that have strongly contested about the 6 year rule. I think this understanding about the 6 year rule comes from different interpretations of CFR Section 214(g)(7).

      Scientist2016, do you have any reliable information about any case of H1B remainder time being rejected because the validity of petition was more than 6 years old OR the applicant was not in H1 status in last six years. I am just trying to know if your understanding about this rule is based your interpretation of the above rule

      Comment


      • #4
        Originally posted by forh1b View Post
        I guess that was the prevailing opinion until that claim was disputed. I see it in some posts on some threads here on this website and as well as in some articles on some other websites that have strongly contested about the 6 year rule. I think this understanding about the 6 year rule comes from different interpretations of CFR Section 214(g)(7).

        Scientist2016, do you have any reliable information about any case of H1B remainder time being rejected because the validity of petition was more than 6 years old OR the applicant was not in H1 status in last six years. I am just trying to know if your understanding about this rule is based your interpretation of the above rule
        I do not know what interpretation you are referring to, but it is quite clearly mentioned in Act 214:

        (7) 2 Any alien who has already been counted within the 6 years prior to the
        approval of a petition described in subsection (c), toward the numerical
        limitations of paragraph (1)(A)shall not again be counted toward those
        limitations unless the alien would be eligible for a full 6 years of authorized
        admission at the time the petition is filed. Where multiple petitions are
        approved for 1 alien, that alien shall be counted only once.

        So, if you haven't been counted in the past 6 yrs, then you will have to file a fresh petition. Imagine the consequences of not doing so: An employer could technically have filed a H1 in 2000 and use it now.
        Just an opinion; Not legal advice.

        Comment


        • #5
          Originally posted by scientist2016 View Post
          I do not know what interpretation you are referring to, but it is quite clearly mentioned in Act 214:

          (7) 2 Any alien who has already been counted within the 6 years prior to the
          approval of a petition described in subsection (c), toward the numerical
          limitations of paragraph (1)(A)shall not again be counted toward those
          limitations unless the alien would be eligible for a full 6 years of authorized
          admission at the time the petition is filed. Where multiple petitions are
          approved for 1 alien, that alien shall be counted only once.

          So, if you haven't been counted in the past 6 yrs, then you will have to file a fresh petition. Imagine the consequences of not doing so: An employer could technically have filed a H1 in 2000 and use it now.
          Well I would like to draw your attention to this particular article http://forum.******.com/topic/79660-...re-than-6-yrs/

          Where it has been very comprehensively debated about the 6 year rule. what do you make out from the link mentioned above

          And based upon the same message that you have posted above, I would like to raise a few points just to show that what you mention as "clearly mentioned" is probably not as clear,

          looking at the phrase " Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c)"

          Could you tell me which petition is the above statement referring to, is it the original petition filed in the past, or is it the "remainder time" petition files to capture remaining time.

          If it is former i.e the time frame from the original petition, then the statement talks about "6 year prior to approval from the original petition". How can in that case the USCIS consider a timeframe that is even before the filing of original petition

          If it is latter i.e the petition for "remainder time", then the statement talks about "6 year prior to approval of" the current petition and not the original petition.In that case how did you decide that the time frame of 6 years is considered after the approval of original petition, when clearly they used the word "prior" and the petition being used is the latter one not the original one

          And further I would like to understand about the 6 years that is being talked about in the above statement, how did you decide that it is actually calendar years.

          Look at the phrase "unless the alien would be eligible for a full 6 years of authorised admission at the time the petition is filed."

          Can you tell me where is the "unless" part exactly applicable and what exactly does that mean.

          Comment


          • #6
            Originally posted by forh1b View Post
            looking at the phrase " Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c)"

            Could you tell me which petition is the above statement referring to, is it the original petition filed in the past, or is it the "remainder time" petition files to capture remaining time.
            In this context, "counted" refers to the count against the annual numerical cap on principal H visas

            Comment


            • #7
              Originally posted by inadmissible View Post
              In this context, "counted" refers to the count against the annual numerical cap on principal H visas
              Hello inadmissible,

              How did you assume that I did not know what "counted" refers to "in this context" when in fact that was not even my question. I request you to not misinterpret my questions and give an answer for the questions I did not ask.

              Comment


              • #8
                Even I am also in same case and my H1B was approved in the same year as yours.

                Did you get your H1B filed under cap-exempt and was approved ?

                Comment

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