Unused Expired H1B

[rjr2007]

Unused h1B

Hello,
This may sound like a redundant question. Sorry for that.
I had an H1 between Oct 2003 and Apr 2006. I worked in the US between
Nov 2003 and Jun 2004 and
Oct 2005 and Feb 2006.

My Employer filed for an extension in 2006 and it was approved (Not sure until when though).
I had been to the US on H4 on two occasions in 2009 and 2010 for a month each.
Currently, I am in the US on a H4 (2013). Can i apply for H1b with a new employer and can it be filed under non-CAP with a COS filed?

Thanks.

[raghvi]

Hi foofighters,

My H1b was approved in 2004. I never travelled to US on H1. Now, in 2013 can i apply for H1b with a new employer and can it be filed under non-CAP with a COS filed?

Please let me know.

Thanks.

No. For one to use the "remainder option" one has to have had an H1 status in last 6 Years.

This is my opinion not legal advice.

[sharanv]

Expired h1b

Hi foofighters,

My H1b was approved in 2004. I never travelled to US on H1. Now, in 2013 can i apply for H1b with a new employer and can it be filed under non-CAP with a COS filed?

Please let me know.

Thanks.

[foofighters]

So, if the above is correct, my H1B was valid till 2007 from 2004 (& I used less than 6 months) then if I were to apply for a H1B now, it will be cap exempt? Am I correct in my understanding?

Does it matter if I have traveled to the US between 2007 & now on B1...will that time be considered as stay in the US when processing the new H1B?

yes you will be cap exempt

the conditions are,

1. you must have time on your H1 ie not exhausted the 6 years

2. you must be atleast 1 year outside US before filing a H1 to claim the 'remainder' period.

in ur case as long as u physically spent a continuos year outside US u should be ok

[pshriram]

hey shervin


it does not matter if your h1 was approved 6 yrs back or 10 yrs back or 20 years back. You are CAP exempt if there is still TIME ON IT ie. if you were physically in the US on H1 status for less than 6 years. thats all that matters. even in this case YOU have 2 options

So, if the above is correct, my H1B was valid till 2007 from 2004 (& I used less than 6 months) then if I were to apply for a H1B now, it will be cap exempt? Am I correct in my understanding?

Does it matter if I have traveled to the US between 2007 & now on B1...will that time be considered as stay in the US when processing the new H1B?

[foofighters]

It is not just the 6 year limitation on the CAP. Once you have completed 6 years in U.S in H1B, you cannot use any other petition to get exempt from CAP. In order to get a fresh 6 year period, you need to stay out for one whole year and then apply for the H1B under a brand new CAP to be eligible for H1B. What happened in your friend's case could very well be a mistake. USCIS would have overlooked the fact that his previous H1B petition got approved very long time ago.

hey shervin

with all due respect stop misguiding members with wrong information

I have seen your comments in several threads

you have wrong info yet your assuredness would make members believe what you are saying and then maybe act on your advise and spoil their life

FIRST OF ALL

THERE IS NO SUCH THINK AS A 6 YEAR LIMITATION ON CAP. bcos then how would the above members' friend recapture a H1 first approved in 1999 in 2008???

it does not matter if your h1 was approved 6 yrs back or 10 yrs back or 20 years back. You are CAP exempt if there is still TIME ON IT ie. if you were physically in the US on H1 status for less than 6 years. thats all that matters. even in this case YOU have 2 options

option 1. it is upto you if you want to recapture that old H1 and claim "REMAINDER" TIME in which case it is CAP exempt. and a new H1 will be issued only for the remainder time, ie. 6 YEARS Minus what you already used up.

option 2. If you want another FRESH 6years , then you are subject to the cap.

however both these options will be open ONLY after you spend more than 1 year outside US

for more clarity , see link https://www.immihelp.com/h1b-visa-general-faq/

- - - Updated - - -

I was in the US on a H1B visa from Aug-2005 to Aug-2011. I am presently doing my one year out of the country. My Indian Company had planned to apply H1 for me, but they sent in the application 1 day late and I missed the quota for this year. I cannot afford to stay one year out of the country again.

I had two H1 petitions in 2000 and 2001, which I never used and they are expired. I have asked around to see whether I can use them to apply for CAP-EXEMPT H1B, so I can enter the US on a H1B. So far I have got a negative reply, the reason for the negative reply is that since my H1B approval is more than 6 years old I cannot use the same. However I have a friend of mine who was on a L1 in the US from Jan-2007 and in 2008 since the H1B quota was over, he used an old H1B approval which he got in 1999 and appealed for CAP-EXEMPT and since he got the H1B visa, he has been on H1B since then.

I would like to know whether I can use my old H1B approvals of 2000 and 2001. If I cannot, then how did my friend get his H1B which was expired more than 6 years. When I checked with him, all he said was he submitted the usual documents and they "APPEALED" for CAP-EXEMPT. He is also not sure how they did it as he has left that company long back.

Pl help me out here as am desperate. Thanks

TO trjj74


you will not qualify for cap exempt, the reason is you exhausted total 6 years status on H1 FROM Aug 2005 to Aug 2011

you have to go again on a new quota based VISA

or if any option , go for extn, but I am not sure

1 thing is for sure, you do not meet the requirements for cap exempt

[shervin143]

It is not just the 6 year limitation on the CAP. Once you have completed 6 years in U.S in H1B, you cannot use any other petition to get exempt from CAP. In order to get a fresh 6 year period, you need to stay out for one whole year and then apply for the H1B under a brand new CAP to be eligible for H1B. What happened in your friend's case could very well be a mistake. USCIS would have overlooked the fact that his previous H1B petition got approved very long time ago.

[trjj74]

I was in the US on a H1B visa from Aug-2005 to Aug-2011. I am presently doing my one year out of the country. My Indian Company had planned to apply H1 for me, but they sent in the application 1 day late and I missed the quota for this year. I cannot afford to stay one year out of the country again.

I had two H1 petitions in 2000 and 2001, which I never used and they are expired. I have asked around to see whether I can use them to apply for CAP-EXEMPT H1B, so I can enter the US on a H1B. So far I have got a negative reply, the reason for the negative reply is that since my H1B approval is more than 6 years old I cannot use the same. However I have a friend of mine who was on a L1 in the US from Jan-2007 and in 2008 since the H1B quota was over, he used an old H1B approval which he got in 1999 and appealed for CAP-EXEMPT and since he got the H1B visa, he has been on H1B since then.

I would like to know whether I can use my old H1B approvals of 2000 and 2001. If I cannot, then how did my friend get his H1B which was expired more than 6 years. When I checked with him, all he said was he submitted the usual documents and they "APPEALED" for CAP-EXEMPT. He is also not sure how they did it as he has left that company long back.

Pl help me out here as am desperate. Thanks