AmitKumar23 Posted February 15, 2017 Report Share Posted February 15, 2017 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 Link to comment
shekar11# Posted February 15, 2017 Report Share Posted February 15, 2017 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. Link to comment
LuckyLoser Posted February 22, 2017 Report Share Posted February 22, 2017 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). Link to comment
captainmao Posted March 1, 2017 Report Share Posted March 1, 2017 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! Link to comment
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