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Filing against remainder of H1B time to escape 2011 cap and then fresh H1B.

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  • Filing against remainder of H1B time to escape 2011 cap and then fresh H1B.

    My brief history is as follows.
    I was in the Usa working on H1b from oct 2003 to Nov 2008 (approx 5 yrs and 1 month) and left usa to explore job options in India and my employment relationship with this company was formally terminated in March 2009 while I was in India. I have worked in India since then for a period of approx 3 yrs. I received a new job offer from a USA based firm (leading consulting company in usa) , however I can not join them since the cap for h1b quota for 2011 (including adv degrees) has been reached on Nov 22, 2011. I have a masters degree from a usa university.

    1) Can my new company file for an H1B against the remainder of time remaining on previous H1B (approx 10-11 months) to be exempt for the cap? And, subsequently file another H1B petition in April 2012 against the quota cap without me having to leave the USA ? Or do I have to leave the country again for 1 year to be eligible for a fresh 6 year cycle? I have already spent 3 yrs outside usa (nov 2008 to current). The idea is to file against the previous H1B time (11 months) to escape the quota cap for 2011 and continue to be able to work in the usa so that I can file a fresh 6 year H1B without leaving the USA next year. Is it possible?

    2) Any other suggestions to make this work?

  • #2
    If you use the previous CAP to recapture the remaining period and enter U.S, then you are noty eligible to file a fresh H1B petition on April 1st 2012 (under 2013 CAP). You have to once again spend 1 year outside U.S to get a fresh 6 year period.
    Not a legal advice. Use of this information is strictly at your own risk.

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    • #3
      Originally posted by shervin143 View Post
      If you use the previous CAP to recapture the remaining period and enter U.S, then you are noty eligible to file a fresh H1B petition on April 1st 2012 (under 2013 CAP). You have to once again spend 1 year outside U.S to get a fresh 6 year period.
      Thanks for the response!

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