H1B cap exempt or not

Recommended Posts

Hi Experts,

I Previously held H1B status : September 2005 - Nov 2017 ( was extended 2 times based on I-140)

I-140: Was approved in 2011 and recently Withdrawn by previous Employer 

I am looking to apply for H1B Visa; Am I apply eligible to apply for H1B visa as a cap exempt 
(processing the application without going through H1B lottery)

Looking forward to get your advises.



Link to comment

Once an individual is selected in the CAP lottery, receives an approved CAP petition, and begins working in the job listed on the petition, they are considered to be counted against the CAP lottery. An individual who is counted against the CAP does not need to enter the lottery again even if they are changing employers or have been out of the country unemployed, so long as they have a portion of their 6 years of allotted H1B time left, or the ability to extend past that allotted time. An individual with an approved I-140 can extend beyond the 6 years allotted in H1B status. If the I-140 is approved for 180 days, an individual can still use that I-140 to extend their H1B status even if it is withdrawn by the employer. However, once an individual’s priority date listed on their I-140 becomes current, that individual has 365 days to file an I-485 application to adjust status. If the individual does not file within one year, they lose the ability to extend their H1B status unless they can prove it was through no fault of the individual that they did not file.

Furthermore, if an individual is outside of the United States for longer than one year, they can again apply through the CAP lottery in order to receive a new 6 years allotted in H1B.

As seen in the response above, this can be a complicated situation and I would recommend scheduling a consult with an attorney at the Murthy Law Firm.

Link to comment
  • 4 weeks later...


Was in US from 2002 to 2017 October on F1/H1 combinations.

  1. F1: 2002-2005
  2. H1: 5 years H1B with Employer 1 (2005-2010)
  3. F1 (2010-2012)
  4. H1: 1 year with employer 2. Employer applied for I-140. Approved in March 2014. Extended H1B beyond 6 years and got approved.
  5. H1: Changed jobs in March 2017 and got 3 year extension on H1B from Mar 2017-March 2020.
  6. Resigned and left US in October 2017. Living in Canada.

So, now I have an approved I-140 and looking for a job again in US. The question is that when I find a job and the employer applies for H1B visa:

  1. Will H1B application fall under the cap? or
  2. Considering I have an approved I-140 (even though I have stayed out of US for 5 years and my previous H1B expired in 2020) and I have unused 2.5 years (Nov 2018 - Mar 2020) left on previously approved H1B, that I will be Cap exempt and NOT fall under H1B cap?
  3. Does it matter if the job is in the same field or not?



Link to comment

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.