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H1B Cap exempt ot not?

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  • H1B Cap exempt ot not?

    Hello,

    I have had F1 & H1 in the past. My H1B was valid till 2007.

    I moved to my home country in 2004 and I barely stayed for 6 months in H1B status. I have since visited the US on B1 visa many times & my B1 is still valid.

    My question is if I were to apply for H1B now, will my application be cap exempt? or Do I have to wait till April 2013 to file a fresh petition.

    Cheers,
    Shriram

  • #2
    H1B Cap exempt ot not?

    To add to that, My H1b was approved in end 2003 / early 2004. It is close to a decade since my H1B approval.

    To be considered as cap exempt / out of cap, I read somewhere that the last H1B approval (counted towards cap) should have been approved in the last 6 years.

    Does the 6 year rule hold good or I can file a H1B cap exempt / out of cap petition at any time OR do I need to file a fresh H1B petition?

    Any thoughts?

    Urgent feedback will be appreciated....

    Thanks!

    Originally posted by pshriram View Post
    Hello,

    I have had F1 & H1 in the past. My H1B was valid till 2007.

    I moved to my home country in 2004 and I barely stayed for 6 months in H1B status. I have since visited the US on B1 visa many times & my B1 is still valid.

    My question is if I were to apply for H1B now, will my application be cap exempt? or Do I have to wait till April 2013 to file a fresh petition.

    Cheers,
    Shriram

    Comment


    • #3
      Since 2007 is 6 years from now, you will not be eligible for cap exempt petition.
      This is my opinion and not legal advice.

      Comment


      • #4
        H1B Cap exempt ot not?

        Originally posted by kabkaba View Post
        Since 2007 is 6 years from now, you will not be eligible for cap exempt petition.
        Thanks kabkaba!

        I am pasting another post by a member in a separate post..it reads as below.

        "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"

        Both your statement and the above seem to contradict each other.

        I have been living outside the US for almost 10 years now (except travel on B1 Visa) & my H1B was approved (& stamped) in 2004 (till 2007) and I left the US in mid 2004 (6 month stay on H1B). I was counted towards the cap in 2004. In summary, I have about 5.5 years remaining that can be used (hypothetically).

        If I apply now for an H1B, am I cap exempt or not is the question I am trying to get answered. In effect, can I bring back the remaining 5.5 years into my current petition.

        Another point to note is that this time, my employer filing will be different than the one who filed the petition in 2004. Does this matter at all?

        This becomes crucial since the quota cap has been reached before my petition could be filed.

        Comment


        • #5
          While the other view seems logical to me, official USCIS view is that they only consider the petitions within the last 6 years to consider cap-exemption.
          This is my opinion and not legal advice.

          Comment

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