H1B cap exempt and getting a new H1 under cap next year

[usaaspirant]

Hi ,

I worked in the US for 5 years in H1B with employer A and then came back to my home country and started working for employer B . Now i am trying to come back to the US through employer B and B is basically going to apply for a cap exempt so that i can get my 1 year back of the old H1B . I left the US almost 2 years ago and has not retured till date . So my question is , if employer B files another fresh H1B in next year under cap while i am in the US and if it gets approved before the 1 year is over with the cap exempt H1B will i be able to contiune working in the US with out coming back and remain outside the US for 1 year . Would really appreciate the answers .Thanks....

[JoeF]

It is not retroactive. If you comes to the US now, the time abroad is gone.

For a new H1 under the cap, you would have to be abroad again for a year.

[usaaspirant]

Thanks JoeF . Can you please suggest the best route to tackle this issue if i want to continue working in the US uninterrupted . I know ifmy employer files for a GC i still can do this with old H1 , other wise if i have to come now the

only bet is L1. I do have a specific skill so i beleive i can qualify for a L1B and then apply for a H1 next year . Your

suggestions are highly appreciated ..

[JoeF]

Thanks JoeF . Can you please suggest the best route to tackle this issue if i want to continue working in the US uninterrupted . I know ifmy employer files for a GC i still can do this with old H1 , other wise if i have to come now the

only bet is L1. I do have a specific skill so i beleive i can qualify for a L1B and then apply for a H1 next year . Your

suggestions are highly appreciated ..

For an L1, you have to have worked for a foreign branch of the employer for at least 1 year in the last 3 years.

If you want the full 6 years on H1, you can only get an H1 for start on Oct. 1, 2012.

[usaaspirant]

I have been working for this company for a year now and will try the L1 route. Thanks again Joe for you feedback and really appreciate the time you are spending on this forum to answer countless questions ( free of cost !!!) .

[usaaspirant]

Hi JoeF ,

Suppose i come after May of next year to US in cap exempt H1 and then start a new H1 under cap and work from Oct next year , i have still not used 6 years of my old H1 . In this event will i be able to continue with thr new H1 . Your inputs will be appreciated . Thanks..

[JoeF]

Cap or cap-exempt does not matter. The 6-year limit applies to all H1s.

If you come to the US on any visa except B1/B2 for short visits before a year is over, you won't get the full 6 years. You can't even apply for an H1 before being a year abroad. That's all there is to it. There is no workaround.

[usaaspirant]

Got it Joef . Thanks , this makes it very clear .

[seeking1]

Hi usaaspirant, I am exactly in the same situation as yours last year. Care sharing any solutions or answers you found?

Thanks.