Am I eligible for cap exempt for h1b?

[ksdaisy]

I went for stamping and got h1b approved in nov 2010 and is valid till July 2013. I never worked on this h1. I came to us in 2011 on h4. Now working on h4 ead. 

Question: 

1. am I exempt from h1b cap?

2. Can I transfer from h4 to h1b? 

3. Can I transfer now? 

Thanks.

 

[Mohan2324]

Yes, Yes, Yes

[satya2k1]

@ Ksdaisy,

If you have entered US on H4, and you never worked on H1B in the USA then your H1B was never counted towards the cap.  You were never on H1B status in the USA.  Your employer have to file non-cap exempt H1B in April.

1.  No, You are not cap-exempt

2. Yes, you can change from H4 to H1 in April with new non-cap exempt H1B petition

3. NO.

I am not an attorney.  Your employer's attorney will take care of H1B filing.

[pontevecchio]

1. If you did get the H1 visa stamped based on the H1 petition approval, you may be able to consider yourself cap counted and hence able to transfer. You would need to touch base with a lawyer with your details to confirm.

2. See 1.

3. see 1.

If and only if the lawyer is of the opinion that you are considered cap counted based on having a H1 Visa stamp or on the basis that the new rules were not applicable in 2010, you can then get another H1 sponsor to file a non cap H1 for you.