H1B Status?- H1B stamping valid for 2 more years but I've not flown to the US with this H1B stamp.Am I cap exempt for transfer?

[kakabana]

Hi, 

I have a H1B Visa stamping valid till end of September 2015 with my current "Employer A", however I have not yet flown into the US with this H1B Visa and I am still in my home country. I had a F1 Visa while I did my MS which is now 5 years ago and the F1 visa is now expired. 

Currently I have another opportunity with"Employer B" who is willing to file a new petition for me for an opportunity with them. 
My question is since I've never flown to the US with my current "Employer A" with this H1B stamp will my new petition for H1b transfer to the new "Employer B" be considered Cap exempt ? In other words do I already have a H1B status with just a H1B visa stamping for a transfer to a new employer? I've heard people who say it is not cap exempt and some say it is, what is your opinion? 

 

Thanks!

Regards, 
Sam

[jairichi]

Your employer B can file a H1B petition (cap exempt) anytime and once approved you can travel to US with your old valid, unexpired H1B visa and new I797 document.

[kakabana]

So your saying that once I had received the approved I797 for my current employer, I'm under the CAP and would be considered CAP exempt for the next 6 years even though I have NOT flown to the US yet on the H1B gaining H1B status ? Therefore I would be eligible CAP exempt for a H1B transfer to a new employer ?

[jairichi]

So your saying that once I had received the approved I797 for my current employer, I'm under the CAP and would be considered CAP exempt for the next 6 years even though I have NOT flown to the US yet on the H1B gaining H1B status ? Therefore I would be eligible CAP exempt for a H1B transfer to a new employer ?

Yes, you are correct. To be more sure give a call to murthy law office in your location and get a precise input from them or you could confirm this with your new employer's attorney