H1B CAB Exempt Option

[Senthilportal]

Hi,

        I was in US on H1B from October 2007 to October 2010, then extended my petition till Sep 2013, and my Visa got rejected in Jan 2011 during my India trip due to EVVC model.

        From Jan 2011, I am continuing work in India, Will I be eligible for cap-exempt? can I process new petition +stamping through some other employer anytime now, not required to wait for April lottery process? If yes, till when  can I utilize cap-exempt? 

 

Thanks in advance. 

 

Senthil K

[jairichi]

Hi,

        I was in US on H1B from October 2007 to October 2010, then extended my petition till Sep 2013, and my Visa got rejected in Jan 2011 during my India trip due to EVVC model.

        From Jan 2011, I am continuing work in India, Will I be eligible for cap-exempt? can I process new petition +stamping through some other employer anytime now, not required to wait for April lottery process? If yes, till when  can I utilize cap-exempt? 

 

Thanks in advance. 

 

Senthil K

Yes, anytime a new employer can file a cap exempt petition and you would get remainder of years allowed on H1B. 

[Diorsdune]

@ Jairichi : Please can you confirm until when is Senthilportal Cap exempt.. my case is very identical.

[jairichi]

@ Jairichi : Please can you confirm until when is Senthilportal Cap exempt.. my case is very identical.

If you have been counted against H1B cap once and have not utilized the allowed maximum of 6 years on H1B then you are cap exempt.

[Senthilportal]

@Jairichi, If I use cab exempt, am I eligible for another 6 yrs since I am already out of country for more than one year? or eligible only for remaining 3 years? 

[jairichi]

@Jairichi, If I use cab exempt, am I eligible for another 6 yrs since I am already out of country for more than one year? or eligible only for remaining 3 years? 

Only if a cap subject H1B petition is filed you will get 6 years. Otherwise you would get remaining 3 years.

[JoeF]

@Jairichi, If I use cab exempt, am I eligible for another 6 yrs since I am already out of country for more than one year? or eligible only for remaining 3 years? 

If you have been abroad for a year or more, you have a choice of a) get the remainder time and being cap-exempt, or b) get a fresh H1 under the quota.

[L2EADGC]

You will atleast get the remainder period of your intital H1B . As you are out of country for more than 365 days you may get fresh 6 years, this is one grey area, I don't think anyone has a perfect 100% answer here. 

 

Here is my own case.

1) I was in USA on L1 for 7 years from 2004 to 2012 with 3 1-2 months vacations. 

2) I had a old H1B petition approved in 2006, which i never used.

3) Last week i got my H1B approved as a CAP Exempt case.

 

From what i heard from this forum and others, I'm not eligible for cap exempt as i had exhausted 7 years on L1, but my attorney told me i'm cap exempt as long as we have one approved H1B and out of country for more than an year.

 

So this is one grey area.

[jairichi]

You will atleast get the remainder period of your intital H1B . As you are out of country for more than 365 days you may get fresh 6 years, this is one grey area, I don't think anyone has a perfect 100% answer here. 

 

Here is my own case.

1) I was in USA on L1 for 7 years from 2004 to 2012 with 3 1-2 months vacations. 

2) I had a old H1B petition approved in 2006, which i never used.

3) Last week i got my H1B approved as a CAP Exempt case.

 

From what i heard from this forum and others, I'm not eligible for cap exempt as i had exhausted 7 years on L1, but my attorney told me i'm cap exempt as long as we have one approved H1B and out of country for more than an year.

 

So this is one grey area.

Yes, I am surprised too. Hopefully we can hear more cases like this to reinforce this new concept of cap exempt H1B petition and not that it is an approval that happened in error.

[JoeF]

You will atleast get the remainder period of your intital H1B . As you are out of country for more than 365 days you may get fresh 6 years, this is one grey area, I don't think anyone has a perfect 100% answer here.

Not a gray area at all.

There are appropriate guidelines and memos by USCIS.

If you have been abroad for a year or more, you have a choice of a) get the remainder time and being cap-exempt, or b) get a fresh H1 under the quota.

[JoeF]

You will atleast get the remainder period of your intital H1B . As you are out of country for more than 365 days you may get fresh 6 years, this is one grey area, I don't think anyone has a perfect 100% answer here. 

 

Here is my own case.

1) I was in USA on L1 for 7 years from 2004 to 2012 with 3 1-2 months vacations. 

2) I had a old H1B petition approved in 2006, which i never used.

3) Last week i got my H1B approved as a CAP Exempt case.

 

From what i heard from this forum and others, I'm not eligible for cap exempt as i had exhausted 7 years on L1, but my attorney told me i'm cap exempt as long as we have one approved H1B and out of country for more than an year.

 

So this is one grey area.

Actually, your case looks like approved in error.

Human error happens, but they will eventually find out and then they could revoke the H1 retroactively.

[L2EADGC]

JoeF :

 

That was the reason I said its one grey area, I was of the same opinion as you, but my attorney was confident that its cap exempt as long as I was out of country for 365 days. I even got an RFE for the same and asked for my arrival and departure dates and whole copy of my passport and also my tax returns for previous years. Once I submitted them my H1B was approved. How can you say, it was approved in error ?  Do you know of any previous cases where H1B was revoked after it was approved ?

[JoeF]

JoeF :

 

That was the reason I said its one grey area, I was of the same opinion as you, but my attorney was confident that its cap exempt as long as I was out of country for 365 days. I even got an RFE for the same and asked for my arrival and departure dates and whole copy of my passport and also my tax returns for previous years. Once I submitted them my H1B was approved. How can you say, it was approved in error ?  Do you know of any previous cases where H1B was revoked after it was approved ?

Yes, there are a bunch of people who had H1s approved in error, and then it was later revoked.

Most recently this happened with people who used a degree from a for-profit university for an H1 in the Masters degree quota, which is not allowed. There are some posts about that here.

The bottom line is that if you try to benefit from a USCIS error, you could find yourself being illegal retroactively when they revoke it.

Their position is that something that was approved in error is like it was never approved, when they find out.

[L2EADGC]

Yes, there are a bunch of people who had H1s approved in error, and then it was later revoked.

Most recently this happened with people who used a degree from a for-profit university for an H1 in the Masters degree quota, which is not allowed. There are some posts about that here.

The bottom line is that if you try to benefit from a USCIS error, you could find yourself being illegal retroactively when they revoke it.

Their position is that something that was approved in error is like it was never approved, when they find out.

 

OK, Thanks for the info ! You are scaring me :)- I have scheduled a consulation with the attorney and will get back . I don't understand why will it be my problem when USCIS approves something that's not my fault. I provided all the information , they had a RFE then afer providing relevant documents they approved the case, all they asked was my complete passport and I provided it, which was later approved .

[jairichi]

OK, Thanks for the info ! You are scaring me :)- I have scheduled a consulation with the attorney and will get back . I don't understand why will it be my problem when USCIS approves something that's not my fault. I provided all the information , they had a RFE then afer providing relevant documents they approved the case, all they asked was my complete passport and I provided it, which was later approved .

It is always better to get expert opinions from qualified independent attorneys in your case.

[t75]

USCIS does not have to be reasonable if approved in error and a violation of the law has occurred.

 

You need to worry about illegal presence and a 3/10 year ban from the US.

 

When in doubt, follow the most restrictive rule.

[L2EADGC]

USCIS does not have to be reasonable if approved in error and a violation of the law has occurred.

 

You need to worry about illegal presence and a 3/10 year ban from the US.

 

When in doubt, follow the most restrictive rule.

 

Hello Guys, Stop scaring people . I had a lengthy discussion with the attorney and I'm good with my case. My suggestion to the folks in this forum is not to get carried away by seniors in this forum, instead get a expert attorney opinion.

[L2EADGC]

It is always better to get expert opinions from qualified independent attorneys in your case.

 

Thanks Jairichi , I spoke to attorney and I'm good.

[jairichi]

Thanks Jairichi , I spoke to attorney and I'm good.

Good to know that you spoke to an attorney. Out of curiosity is the attorney with whom you discussed this issue an independent one and not employer's attorney who filed your cap exempt H1B? Also, could you kindly let us know the precise rule the attorney referred to in your case? This would help a lot of us in providing proper guidance in this forum.

[keyrun13]

Hello,

 

I would like to know whether my case comes under cap exempt or not?

 

Here are the details

 

I have an approved petition which is valid from October 2008 till September 2011.

 

I had never been to US and I never got my visa stamped as I never applied for the same.

 

Now I want to go for H1B filing and could someone please let me know if I am eligible for Cap Exemption?

 

If so what would be the 'Type of Case' in this scenario?

('Change of Employer' or 'Extension' or 'Amendment')

 

Could someone please answer my queries ASAP, so that I could go for further processing?

 

Thanks in advance.

 

 

[keyrun13]

Hi,

 

I have an approved petition in 2008 and never been to US as I never got my H1B Visa stamped (I never applied for the same)

 

I want to go for H1B filing now and could someone please let me know whether my case is eligible for Cap Exemption?

 

Thanks in advance.

[jairichi]

Hi,

 

I have an approved petition in 2008 and never been to US as I never got my H1B Visa stamped (I never applied for the same)

 

I want to go for H1B filing now and could someone please let me know whether my case is eligible for Cap Exemption?

 

Thanks in advance.

Yes, you are cap exempt.

[Senthilportal]

If you have been counted against H1B cap once and have not utilized the allowed maximum of 6 years on H1B then you are cap exempt.

@Jairichi, Could you please let me know how many years I will get if some X company process my new L1B? Please note that I was in US for around 3years on H1 from Oct2007 to Oct 2010. 

[binduleo]

Hi,

 

I have an expired and unused H1B visa which was issued in Feb 2008 and expired in Sep 2010. I had filed for it in the year 2007. I haven't utilized this visa and never travelled to the US till date. Now my current employer would like to file a H1B visa this year. Will I be eligible for cap exempt? Can someone clear this dilemma that I am facing?

 

Thanks in advance.

[jairichi]

Hi,

 

I have an expired and unused H1B visa which was issued in Feb 2008 and expired in Sep 2010. I had filed for it in the year 2007. I haven't utilized this visa and never travelled to the US till date. Now my current employer would like to file a H1B visa this year. Will I be eligible for cap exempt? Can someone clear this dilemma that I am facing?

 

Thanks in advance.

You are cap exempt.