H1B petition was approved in 2010 but unused; Can I apply for new H1B this year without being subject to the cap?

[yahoo1239]

I want to file a new H1B petition. I already have an approved and unused H1B petition. Since I've already been counted toward the 2010 cap, will my new petition be cap-exempt? However I still qualify for the full six years under this new petition so will I be a "new" H1B (and subject to the cap again)?

I am referring to USCIS guide: "Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once."

[livliv]

Yes, you are cap-exempt.

[SameerH1Bworker]

Yes

[pontevecchio]

Any employer needs to file and get a H1 petition approved for you. In your case you would have a total of 6 years in H1 status available.

[yahoo1239]

Thanks for the replies guys. But it appears there is a problem. The employer says that as I had never been to the US on the approved H1b, he says that the H1b might have never been activated and so I would still be counted in the cap.

Could anybody help me.

[JoeF]

Thanks for the replies guys. But it appears there is a problem. The employer says that as I had never been to the US on the approved H1b, he says that the H1b might have never been activated and so I would still be counted in the cap.

Could anybody help me.

That's wrong. The employer should consult with an immigrant lawyer. He obviously has no clue about the H1 rules.

There is nothing to "activate". An approved H1 petition is counted in the quota. Period.

[str]

Hi,

 

I applied for H1B in 2008 and got the petition approved. It was valid from 10/01/2008 to 09/21/2011.  But i never used that petition for stamping or working. Later i travelled to US on L1B from May 2009 to Aug 2011 ( 2 Years 3 months) and returned to India. Please help to clarify my question whether I will be cap exempt if for apply for H1B in April 2015 ( as it has crossed 6 years of validity by sep 2014). Please help

 

Thanks,

Sampath