Am I subjected to H1B CAP?


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I am wondering if I will be subjected to H1B cap, because of my peculiar case.

I have 4.5 yrs left on my H1B but my first petition that was counted against CAP was in 2005.

Following are the details:

I got my first H1B petition for an IT service company approved in 2005. So I guess I was counted against the CAP then.

But due to personal reasons, I did not travel to US on H1B until August 2007 i.e. My first ever entry in US on H1B was in August 2007

A year later i.e. in August 2008, I converted my status from H1B to F1 to pursue my masters. I graduated in 2010 and worked on my F1-OPT until 15 June 2011. I

My employer filed for my H1B in Feb 2011 but it was filed "CAP-EXEMPT" because of my previous H1B which was counted against the CAP.

I was laid off in November 2011. So my recent H1B status has been from mid June through mid November of 2011.

I have just applied to change my status from H1 to H4. Due to my spouse's H1B amendment filing as premium process, my H4 application is also filed for premium processing.

I am interviewing for jobs now. But I am also planning a trip to India in December and will be coming back in January. If a job works out before I leave for India then I will ask the employer for H1B transfer with consular processing. And if nothing works out before leaving for India and I continue my job search after returning from India in January then I will seek H4 to H1B COS.

The CAP for FY2012 is full now.

And one of the CAP exempt clause says that your are exempted from the CAP if you were counted against the CAP once in the last 6 years.

The last 6 years is the issue for me here. What does this mean for me?

Since my first petition (counted against the CAP) was in 2005, will I be subjected to CAP when I seek H4 to H1B COS in 2012, even though I have 4.5 years pending on my H1B?

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In general, if one has been counted against the cap previously they will be cap exempt even if they are changing back to H1B from a different nonimmigrant classification. One would have to depart the US for one year in order to be eligible to be filed under a new H1B quota.

Please consult directly with a qualified immigration attorney to discuss your case in detail and determine a customized course of action.

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