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H1B Cap Exemption question

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  • H1B Cap Exemption question

    I had an H1 which has been expired now, with the following time lines:
    1. H1 petition approved in Sep 2005 till Sep 2008
    2. Went to US from Feb 2006 till Jul 2006
    3. Went back to US during Jun 2007
    4. Applied for an extension in May 2008, got H1 extended till May 2011.
    5. Returned back to India during Jan 2010 and since then in india.

    Now that the visa is expired, a different employer wishes to apply an h1 for me now (Nov/Dec-2011).
    Would I be elligible for a cap exemption considering the fact that i have used not more than 4 years of the 6 year span, It is almost 20 months since my return back, and my ex-employer got my visa-stamp cancelled and took away the petition papers (I do have a copy though)?


  • #2
    Only the time that you actually spent in the US in H1 status counts towards 6 years. Any remainder time can be used by any employer even after cap is closed.
    However, since you have spent 1 year outside the US, if petition is filed under new cap, you can qualify for a fresh 6 years. This must be done while cap is open. Cap is open right now.
    This is my opinion and not legal advice.


    • #3
      Thank you Kabkaba.
      The cap is running out pretty quickly and wasn't sure if it would last for couple of more weeks. I am anticipating some delay in application, so wanted to check if things would still work even if the cap is reached.