Need urgent help - H1B Cap Exempt

[varre_v]

Hello Gurus,

 

Need your expert opinion. I have a situation here....

 

I got an expired H1B approved petition with validity date 10/01/2008 till 09/15/2011. I did not go for visa stamping and never came to US until today.  Recently I came to know from one of my friend that anyone having an approved H1B petition in the last 6 years will be exempt from the H1B cap and they do not need to apply fresh in the 650000 quota for this year because even though I had an expired petition i still belong to the 2008 year quota as I already underwent through the quota for 2008. Are you aware of this clause?

If it is true, does this mean that my 6 year period is still valid until mid September this year? If so, How do I reactivate this H1B petition and what are the possible options? I am in UK and in a dilemma whether to apply for a fresh H1B under this year's quota system or do get the H1b transferred based on my 2008 petition? Like I said before I have not gone for visa stamping and never entered to USA

 

Please advise

 

[jairichi]

Hello Gurus,

 

Need your expert opinion. I have a situation here....

 

I got an expired H1B approved petition with validity date 10/01/2008 till 09/15/2011. I did not go for visa stamping and never came to US until today.  Recently I came to know from one of my friend that anyone having an approved H1B petition in the last 6 years will be exempt from the H1B cap and they do not need to apply fresh in the 650000 quota for this year because even though I had an expired petition i still belong to the 2008 year quota as I already underwent through the quota for 2008. Are you aware of this clause?

If it is true, does this mean that my 6 year period is still valid until mid September this year? If so, How do I reactivate this H1B petition and what are the possible options? I am in UK and in a dilemma whether to apply for a fresh H1B under this year's quota system or do get the H1b transferred based on my 2008 petition? Like I said before I have not gone for visa stamping and never entered to USA

 

Please advise

An employer can file a cap exempt H1B petition anytime and on approval you can travel with a valid H1B visa and I797 to enter US.  

[Pamy]

Hello All...

 

Looking for comments/suggestion svery badly.. a brief about my scenario is as below:

 

1. I had my H1B visa and traveled to US for the first time in Dec 2008.

2. I returned back to India in April 2010.

3. Traveled again to USA in December 2010 and returned back to India in March 2012.

4. My H1-B got expired in September 2013.

5. My current employer is now ready to do a L1-B for me.

 

Now, my question is: For some reason, if my L1 visa is rejected in the consulate, would I still be able to go ahead and apply for H1 under non-cap category? 

Or due I have to go through the entire process from lottery all over again?

 

Your response would be really helpful now for me to take a major decision.

Thanks in advance!!

[jairichi]

Hello All...

 

Looking for comments/suggestion svery badly.. a brief about my scenario is as below:

 

1. I had my H1B visa and traveled to US for the first time in Dec 2008.

2. I returned back to India in April 2010.

3. Traveled again to USA in December 2010 and returned back to India in March 2012.

4. My H1-B got expired in September 2013.

5. My current employer is now ready to do a L1-B for me.

 

Now, my question is: For some reason, if my L1 visa is rejected in the consulate, would I still be able to go ahead and apply for H1 under non-cap category? 

Or due I have to go through the entire process from lottery all over again?

 

Your response would be really helpful now for me to take a major decision.

Thanks in advance!!

Your employer can file a cap subject petition (April) or a cap exempt petition (anytime). Filing a cap subject H1B petition would get you 6 years. Cap exempt petition would get you 6 years - time spent in US on previous H1B status.

[varre_v]

thanks jairichi for your reply. Based on what you are saying, I can get a H1B transfer using my expired petition? If yes the how can i transfer H1B without showing paystubs? Please clarify

[Pamy]

Your employer can file a cap subject petition (April) or a cap exempt petition (anytime). Filing a cap subject H1B petition would get you 6 years. Cap exempt petition would get you 6 years - time spent in US on previous H1B status.

Thank you so much for the quick response.

 

so, if even if my L1-B is rejected, I still have an option to go for H1 in non-cap. Am I correct?

 

In that case, would I have to have some cooling period before applying for H1 after my L1-B rejection?

would my L1-B rejection, affect my H1-B approval in any way?

[jairichi]

Thank you so much for the quick response.

 

so, if even if my L1-B is rejected, I still have an option to go for H1 in non-cap. Am I correct?

 

In that case, would I have to have some cooling period before applying for H1 after my L1-B rejection?

would my L1-B rejection, affect my H1-B approval in any way?

Yes, still an employer can file a cap exempt H1B petition to get remainder days on H1B. There is no cooling period between petitions. It might if the reason for L1B rejection is your employer or you.

[varre_v]

Hi Jairichi,

Thanks for your reply. So does this mean I fall under cap exempt? If so for how long? I have never travelled to USA until now. So, I wonder how can I get my petition transferred without showing pay stubs? Can you please explain the process a little bit more....

[jairichi]

Hi Jairichi,

Thanks for your reply. So does this mean I fall under cap exempt? If so for how long? I have never travelled to USA until now. So, I wonder how can I get my petition transferred without showing pay stubs? Can you please explain the process a little bit more....

You are eligible for 6 years on cap exempt H1B petition. You need to provide your new employer I797 approval notice of your H1B with previous employer.

[varre_v]

Thanks Jairichi for your positive reply. How do I check the current status of my expired H1B petition whether it has been revoked or still valid? My understanding is that if the previous petition is revoked then the new employer cannot transfer it.

[jairichi]

Thanks Jairichi for your positive reply. How do I check the current status of my expired H1B petition whether it has been revoked or still valid? My understanding is that if the previous petition is revoked then the new employer cannot transfer it.

By law an employer has to revoke H1B once you stop working for him/her. However, it will not affect the outcome of future H1B petitions filed by prospective employers.

[elmerfudd]

Hello Gurus,

I am in the similar situation.

I got my H1B approval from September 27, 2007 and was valid until September 27, 2010. I came to US on October 5, 2008 and worked until April 15, 2009. Then left US and came back to my home country. I am out of the 6 years from the original approval date, but worked only seven months out of the original 6 years. Would I be cap exempt if my old employer wants to hire me again? Your expert opinion is much appreciated.

 

Thanks in advance.

 

[jairichi]

Hello Gurus,

I am in the similar situation.

I got my H1B approval from September 27, 2007 and was valid until September 27, 2010. I came to US on October 5, 2008 and worked until April 15, 2009. Then left US and came back to my home country. I am out of the 6 years from the original approval date, but worked only seven months out of the original 6 years. Would I be cap exempt if my old employer wants to hire me again? Your expert opinion is much appreciated.

 

Thanks in advance.

You are cap exempt as you are cap counted once and have not used the max allowed of 6 years stay on H1B status.

[elmerfudd]

Many Thanks for your response.

[elmerfudd]

Thanks again for your response. I am curious as to, how long will I be cap exempt? Is there an expiry date on cap exemption for an applicant who has worked on H1B once, but did not work the full 6 years allowed by the H1 status? Thanks in advance.

[jairichi]

Thanks again for your response. I am curious as to, how long will I be cap exempt? Is there an expiry date on cap exemption for an applicant who has worked on H1B once, but did not work the full 6 years allowed by the H1 status? Thanks in advance.

No expiry date. Till you reach your max allowed stay of 6 years on H1B.

[elmerfudd]

Hi,

I have a followup question. Currently I do not have a valid I797 or I94 and I am in Canada (Canadian citizen). Since I do not need a visa to enter US, can I go start working immediately while my cap exempt H1B is pending, before the approval? I know I can not get a new I94 without a valid approval. But is application pending is good enough to start working?

Thanks in advance.

[josh24]

Hi, Need urgent help ! My previous employer applied for H1b in 2007, its got approved in June 2007, as per mail from HR Petition validity date was : 30-Jun-10. They told me that H1b visa would be valid from Oct.2007. It was not stamped since then.

I changed my job and all details other than Receipt No. is with me. Now when I checked on USCIS site it shows :"Post Decision Activity" & "On June 5, 2007, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice."

Can I still utilize the same approved petition, If so how. Kindly help me.

[josh24]

Hi, My last employer applied for my H1b in 2007, but it was not stamped then. I didn't checked since then, now when I check current status for Form I129 on USCIS website with my receipt no., it shows status as :"Post Decision Activity" & "On June 5, 2007, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice."
Can I still utilize the same approved petition.. If so how. Kindly help me.

[jairichi]

Hi, Need urgent help ! My previous employer applied for H1b in 2007, its got approved in June 2007, as per mail from HR Petition validity date was : 30-Jun-10. They told me that H1b visa would be valid from Oct.2007. It was not stamped since then.

I changed my job and all details other than Receipt No. is with me. Now when I checked on USCIS site it shows :"Post Decision Activity" & "On June 5, 2007, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice."

Can I still utilize the same approved petition, If so how. Kindly help me.

Yes, you will be cap exempt. New employer files a cap exempt H1B petition quoting petition number and you are eligible for 6 years on H1B.

[RKS_11]

Hi !

 

I have also similar kind of issue. Does any one got H1B petition approved ins such case  ?

 

My H1B petition got approved in 2008.

I could not get my VISA stamped because my employer could not give enough supporting document for VISA.

 

No H1B visa stamping, So no travel on H1B.

My H1B petition got expired on 17 Sept 2011.

 

I come to know I can get CAP exemption, if my petition has been approved in last 6 years. Now it is close to 6 years 3 months. Does this mean that my 6 year period is over & my H1b petition cannot be reused for Cap exemption ?

 

If new employer file the new H1B for me, Will I get the Cap exemption OR do I need to wait for New CAP to start?

 

Shall be thankful, If you could answer this ?

 

Regards,

Ravi

[RKS_11]

Hi josh24,

 

Were you able to get the CAP Exemption ? if yes , shall be thankfull, if you could share more details on how you got the cap exemption , as it was more than 6 years?

 

Regards,

Ravi

[Akkibhai]

HI,

I need a help on something similar , here is the scenario.

I had a H1 Approved for 2005-2008 but i never stampted via or entered US on this approved viza.

However in 2012 I got a new H1 applied from a and approved from a different company and lives in US for 2012 - 2018.

Now can i use the old H1 approved in 2005-2008 for CAP excepmt with a new employer?Please advise

 

Thanks

Akram

[User099]

You completed 6 years, you can't use H1 until you have an I140 or if you go thought the lottery again.