H1b visa long ago expired but not staying for 6 years, can it be refreshed? Cap Exempt??

[USVisaSeeker]

Hello , 

I wish to know if there is any such provision available for application of H1b when aspirant has not stayed for his full term of 6 years in US, however that was long ago (15 years ago), can such H1b be refreshed / resurrected?

I stayed in the US in 1999-2000 for 1 year 8 months on H1b for regular employers (not for any Cap Exempt employer). Then I came back to India and continued to stay here. My question now is - Can now any employer apply for my H1b to utilize those 4 odd years (I had not stayed for 6 years and my visa had got expired). I have heard it is called Cap exempt application .... am I correct? If yes, Does that H1b process have to begin in April only along with the regular application procedure?

Thanks

USVisaSeeker

[jairichi]

You might be cap exempt. You need to discuss with a good immigration attorney.

[h1btransferwait]

I have discussed this with an attorney last year and advice was that H1 remain cap exempt from the day it starts ( in I 797) and for 6 years. While period not spent in US can be used later 6 year cap exempt period is only for first 6 years after initial start date. thats just my attorney there may be some other rule.

[USVisaSeeker]

Thank you. I am slightly confused by your language. I guess you are saying - No , H1b cannot be refreshed. But what is this you have added "While period not spent in US can be used later"...? 

[h1btransferwait]

No problem. 

The information he gave me was ( again no legal validity - it was just opinion of one attorney I went to)

 

1. H1B can be reused as Cap- Exempt application for 6 years from starting date. E.g. If 01-01-2010 is start date in H1B approved petition. Then Till 01-01-2016 another application can be filed either change of employer and extension to use any left over period. So If you have used only 4 years u can apply can get that 2 years. 

 

2. However attorney said ( and made me confused ) in the above case after 01-01-2016 a CAP EXEMPT petition can not be filed using old h1b petition. Which means you will have to file a new h1b and go for lottery. As per my attorney even if only 1 years was used in that petition after 6 years ( 01-01-2010 to 01-01-2016 ) you can not use that petition to get exemption from lottery.

 

As i said this was one attorney, if it is very urgent I suggest go for a very reputed law firm. Thanks  

[h1btransferwait]

Just for update.

 

I talked with another reputed law firm, they are saying they can file h1b as cap exempt even after 10 years. looks like if you have a good attorney you should be able to file it. 

[sush08]

Thanks for the update h1btransferwait..So just to make sure did you receive your approval after filing in the cap exempt category.

 

My case is similar where its a gap of 9 years after my h1b expired with 5 unused years. It expired in 2008 and i would like to file in cap exempt category now., is it possible.

 

Any clarification will be greatly appreciated as its a time critical right now, so i dont miss the h1b filling deadline under cap.