cap-exempt?

[mitgc]

Hi Guys

By reading all these post, it seems you are all expert. I wanted know if I am really cap-exempt?

H1B approved in Apr 2010 from company A but din't travelled since project got cancelled on last moment.

Company B (new) is offering job now and want to consider for h1b filing. Am I cap exempt based upon the fact that I was already counted against Cap in last 6 yrs from now (basically counted in 2010 as mentioned above)?

[mitgc]

would appreciate if any expert can reply.

[neil123]

If you have not got the stamping done then you are not exempted from the Cap. You would have to apply a FRESH H1B application come April 1st 2012 and you can start working only after Oct'12.

[mitgc]

Thanks Neil for your response.

Actually I forgot to mention in my original post that, I also got successfully stamped that H1 on my passport. then according to what you say - I should be cap exempt right?

Now the question is- if cap-exempt petition is approved this time then How many years I will have on this h1?

[JoeF]

If you have not got the stamping done then you are not exempted from the Cap.

Sorry, but that's wrong.

The visa stamp has absolutely nothing to do with it.

The H1 approval is what counts. A person who has an H1 approval under the cap in the last 6 years is not counted again.

The visa is just an entry document, nothing more.

[h1bmav]

JoeF - a petition approved in 2004 and now expired (but with an year pending on it from the initial 6 yr period) - will that be considered cap exempt? This is in reference to being counted in the last six years.

One of the examples in a USCIS memorandum doesn't make any distinction even if it is outside 6 years. Please reply.

[JoeF]

JoeF - a petition approved in 2004 and now expired (but with an year pending on it from the initial 6 yr period) - will that be considered cap exempt? This is in reference to being counted in the last six years.

One of the examples in a USCIS memorandum doesn't make any distinction even if it is outside 6 years. Please reply.

You made me look it up... I remembered the 6 years, but not the actual text...

This is specified in INA 214(g)(7):

"(7) Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once."

[yshpakov]

JoeF,

What do you mean by "6 years"?

6 years of presence in US and working under H1B status?

What about some gaps especially the gap before entering US first time?

If I got H1B petition approved in 2010 and then I first time entered US to work only in 2012 (new petition, H1B transfer)

how long could I work?

2010 + 6 = until 2016?

or

2012 + 6 = until 2018?

Thanks a lot

[JoeF]

JoeF,

What do you mean by "6 years"?

See the text of the law that I quoted.

If the approval of the H1 petition is more than 6 years back, you would be counted for the quota again.

It is irrelevant if you were in the US on H1 or any other status since the approval of the petition.

[Avinash77]

JoeF,

I filed my H1B in April 2006, approved in July 2006 got stamped in October 2006 and was in USA from Nov 2006 to Aug 2009(did not apply for extension), then came back to my home country(India) and have been here ever since.

If I understand the rule you quoted correctly, if I apply for H1B this year(2012) I would be exempt from the cap and can apply anytime I want before April 2013 irrespective of the cap, but if I were to apply after April 2013 the cap limit applies to me?

Would appreciate if you could answer this. Thanks for your time.

[srisoftram]

with regard to this query, I would like to know whether I have to apply again or using same petition can go for stamping (approved petition EAC), I havent got stamped since 2008, my H1B got approved on 2008. Is it still valid and can go for stamping now, same can do H1 transfer....

Please help.

Thanks,

[Avinash77]

See the text of the law that I quoted.

If the approval of the H1 petition is more than 6 years back, you would be counted for the quota again.

It is irrelevant if you were in the US on H1 or any other status since the approval of the petition.

hi experts,

I have posted details of my case above, would appreciate if someone can explain if I will be counted under cap in case I want to apply this year, thank you.

[sakthikalaivanan]

Hi Avinash,

Have you got answers for your case?

Let me know too.. thanks

hi experts,

I have posted details of my case above, would appreciate if someone can explain if I will be counted under cap in case I want to apply this year, thank you.

[puriaseem]

Hi,

I am currently on OPT. My employer will be filing h1b in premium this April, so if everything goes fine, it will be approved in May. Although I understand that my petition will be approved but not active till October 1st. My question is - If I change employer before October 1st once my petition is approved (but not active), will I be cap-exempt if my new employer files a new h-1b petition, since I already got approved in the same year through an earlier employer? Please advise.

Regards,

Aseem

[rahul412]

Hi,

I am currently on OPT. My employer will be filing h1b in premium this April, so if everything goes fine, it will be approved in May. Although I understand that my petition will be approved but not active till October 1st. My question is - If I change employer before October 1st once my petition is approved (but not active), will I be cap-exempt if my new employer files a new h-1b petition, since I already got approved in the same year through an earlier employer? Please advise.

Regards,

Aseem

Yes.

[pontevecchio]

As has been said repeatedly an approved H1 petition entitles the recipient to a total of 6 years in H1 status spread out over multiple decades if necessary unless the law is changed.

[anilmokarala]

Hi, Iam working for Company A from past 5 years and i served in US for two years on L1B from the same company. Last year, i came back to India and my company had processed both my L-1B and H-1B (Consular),  given the chance of rejection. Fortunately, i got L-1B approved and recently my H-1B was picked in the lottery. 

 

My questions are

1. Can i travel to US on L-1B and change to H-1B

2. Can i travel to US for 3 to 4 months and once i get the H-1b approved, can i come back to get it stamped in India? Will i face some problem if i come back within a short time and go for H-1B stamping?

3. Do i need to wait until my H-1b gets approved and then travel to US on H-1B?

4. As my H-1B was filed under consular, Is it ok if i travel on L-1B now and change to H-1B once approved. Would i be considered as CAP exempt, if i have traveled to US and work on L-1B and later change to H-1B.

5. If, i travel now on L-1B, is there a way through which i can change my H-1B status from Consular to COS without coming back to India for stamping?

[jairichi]

 

Hi, Iam working for Company A from past 5 years and i served in US for two years on L1B from the same company. Last year, i came back to India and my company had processed both my L-1B and H-1B (Consular),  given the chance of rejection. Fortunately, i got L-1B approved and recently my H-1B was picked in the lottery. 

 

My questions are

1. Can i travel to US on L-1B and change to H-1B

2. Can i travel to US for 3 to 4 months and once i get the H-1b approved, can i come back to get it stamped in India? Will i face some problem if i come back within a short time and go for H-1B stamping?

3. Do i need to wait until my H-1b gets approved and then travel to US on H-1B?

4. As my H-1B was filed under consular, Is it ok if i travel on L-1B now and change to H-1B once approved. Would i be considered as CAP exempt, if i have traveled to US and work on L-1B and later change to H-1B.

5. If, i travel now on L-1B, is there a way through which i can change my H-1B status from Consular to COS without coming back to India for stamping?

 

1. Yes. If your H1B petition is approved only a employer can file for COS from L1B to H1B by paying H1B fee again.

2. Yes, you can do that. No issues.

3. You can if you want.

4. It is cap exempt and change of status from L1B to H1B.

5. Refer 1.