H1B cap exemption

[AmitKumar23]

Hi,

My question is regarding h1b cap exempt .

My H1b was picked up in lottery last year in May through my current company , but due to some business reasons the they did not send me to USA, so I have not traveled to USA , no stamping was done too.

Can another company in USA apply for H1B transfer without going through lottery again ?  , in other words can I be considered for H1B cap exempt if another company wants to file h1B transfer ?

Really appreciate your response 

Regards,

Amit

 

[shekar11#]

You cannot be considered cap exempt. You need to be on H-1 for at least 1 day in US for you to be counted as cap exempt.

[LuckyLoser]

 

On 2/15/2017 at 1:43 PM, shekar11# said:

You cannot be considered cap exempt. You need to be on H-1 for at least 1 day in US for you to be counted as cap exempt.

Shekar, 

On what basis are you quoting the TS to be in US for atleast one day in US to be cap exempt .

As per https://www.gpo.gov/fdsys/pkg/FR-2016-11-18/pdf/2016-27540.pdf which was published and effective from Jan 17 , 2017 TS is eligible for cap exempt if he is counted once in the past 6 years . I have quoted from page 13 . 

 

b. Application of the H–1B Numerical
Cap to Persons Previously Counted
Section 103 of AC21 also amended
the INA to ensure that H–1B
nonimmigrant workers can change jobs
or employers without again being
counted against the H–1B cap.
Specifically, section 103 provides that
an individual who has been counted 
against the H–1B numerical cap within
the 6 years prior to petition approval
shall not be counted against the cap
unless that individual would be eligible
for a new 6-year period of authorized H–
1B admission. See INA 214(g)(7), 8
U.S.C. 1184(g)(7). In addition, an
individual previously in the United
States in H–1B nonimmigrant status is
eligible for a full 6 years of authorized
admission as an H–1B nonimmigrant
after residing and being physically
present outside the United States for the
immediate prior year. Id.
Section 103 of AC21 also amended
the INA to address cases in which an H–
1B nonimmigrant worker seeks to
change employment from a cap-exempt
entity to a ‘‘cap-subject’’ entity. Section
103 provides that once employment
ceases with respect to a cap-exempt
entity, the H–1B nonimmigrant worker
will be subject to the cap if not
previously counted and no other
exemptions from the cap apply. See INA
214(g)(6), 8 U.S.C. 1184(g)(6). 

[captainmao]

Hi LuckyLoser,

I am in exactly the same situation here as Amit. So what is the conclusion? Are we counted against the H1B cap? Can the new company file a cap exempt petition for us so that we can use this new petition to apply for the H1B visa and then enter the U.S?

Thanks!