H1b petiton valid from 2005 till 2008, am I eligible for cap exempt

[Sweety2406]

Hi All,

I have my H1B petition approved in year 2005. I was in US for 6 months ( Jan-July 2006).

 

Am I eligible for applying H1b visa under cap exempt ( non cap ) category ? 

 

One more query I might travel on H4 with my spouse in Oct 2013. Can I apply for H1B under cap exempt in US ? (in case I am eligible for cap exempt based on above details ) 

 

Appreciate your Quick response.

[0407]

You are cap exempt 

[jairichi]

Yes, you are eligible for cap exempt H1B petition

[Sweety2406]

Yes, you are eligible for cap exempt H1B petition

Thanks 0407 and jairichi for you quick response.

I have another query. My employer mention that since I came back to India in 2006. I am not eligible for cap exempt. As 6 yrs from 2006 ( when i came back to India) is year 2012.

 

Whereas you mentioned that I can apply under cap exempt. Can you please clarify if my employer is correct ?

 

Thanking you in anticipation

 

Regards,

Sweety. 

[0407]

once you are counted against the cap, you remain cap exempt as long as you have not exhausted 6 years in H1B. Start date of

H1B can even be 2000. If you began H1B in 2000 and worked for 6 months, even then you remain cap counted and are eligible

for cap exempt petition which will give you 5.5 years in total, but not more than 3 years at a time.

 

http://rbhs.rutgers.edu/internationalservices/immigration_updates/documents/uscis_memo_on_h-1b_eligibility.pdf

 

Search for "aytes memo december 5 2006".  See page 4 in this memo

[Sweety2406]

once you are counted against the cap, you remain cap exempt as long as you have not exhausted 6 years in H1B. Start date of

H1B can even be 2000. If you began H1B in 2000 and worked for 6 months, even then you remain cap counted and are eligible

for cap exempt petition which will give you 5.5 years in total, but not more than 3 years at a time.

 

http://rbhs.rutgers.edu/internationalservices/immigration_updates/documents/uscis_memo_on_h-1b_eligibility.pdf

 

Search for "aytes memo december 5 2006".  See page 4 in this memo

Thanks  0407 for your detailed explanation.Will share this info with my employer.. 

[Sweety2406]

Thanks  0407 for your detailed explanation.Will share this info with my employer.. 

Hi 0407,

I have informed my employer about the Aytes Memo. He replied with following line from memo  

"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..."

 

And told me that it means "“Alien should be counted for H1B CAP in last 6 years”.

 

Is he correct in his interpretation ?  back to square one. I am confused now. 

 

Please advice.

[0407]

AFAIK, it is not the case. That memo tries to correct the interpretation your employer is making.

It says that, if someone has not exhausted his 6 years on H1B, then he is eligible for reminder

period anytime. And for getting that reminder period, his current non immigration status or

the fact that he is outside US doesn't matter. Is it the HR who is speaking to you or is it an

attorney?

 

Search for some other employer. Good Luck. 

[Sweety2406]

AFAIK, it is not the case. That memo tries to correct the interpretation your employer is making.

It says that, if someone has not exhausted his 6 years on H1B, then he is eligible for reminder

period anytime. And for getting that reminder period, his current non immigration status or

the fact that he is outside US doesn't matter. Is it the HR who is speaking to you or is it an

attorney?

 

Search for some other employer. Good Luck. 

Its the immigration dept of my company not sure if they represent attorney 

[0407]

Erstwhile law was that if someone stayed out of country for more than a year 

he needs a cap subjected petition even if he has not used all the six years

on his first H1B. Memo changes this and says that if someone has stayed

out of country for more than a year he has choice of choosing either reminder

of six years or a new cap subjected H1B. Latter one of course gives him new

six year term. memo also states that for reinstating reminder period one can

be in any legal status in US and may even be outside US.

 

In general, this extends and one can say that you can reclaim your reminder

time any time. This is what I have seen even senior members saying. I guess

if your employer is not willing to take it further there is nothing much you could

do. try for other jobs. I wish you all the best.

[syellanki]

Hi Sweety2406,

 

Please update this post with your latest status as my case is very similar to yours. I will do the same when I hear back from my attorney.

 

Thanks!

[Sweety2406]

Hi Sweety2406,

 

Please update this post with your latest status as my case is very similar to yours. I will do the same when I hear back from my attorney.

 

Thanks!

Hi Syellanki,

I am still taking legal opinion from attorney.

Meantime have check with Immigration dept of my company.They are of the opinion that current date should not be more that 6 years from start date mentioned on petition.

 

Have you got any news from your attorney ??

[JoeF]

Hi Syellanki,

I am still taking legal opinion from attorney.

Meantime have check with Immigration dept of my company.They are of the opinion that current date should not be more that 6 years from start date mentioned on petition.

That used to be the case, but not anymore, since the Aytes memo listed already here.

As long as you have had an H1 before, no matter how long back, and you have been outside the US for at least a year, you have a choice of getting the remainder without being subject to the quota or applying under the quota and getting the full 6 years.

A good immigration lawyer knows that. That's why it is important to not rely on a company immigration department, they may not be up-to-date on things.

[alliswell2013]

Hi Sweety2406 & syellanki,

Please update your status as my case is very similar to this.  Even my employer says that the initial petition was approved in 2006 I am not eligible for cap exempt. 

 

Eagerly waiting for your response :-)

[JenyLop]

What happened to Sweety2406? I am also in the same soup. My Visa got approved in 2007 and never traveled to US. Now my employer can file, but the immigration team is rejecting my petition for two reasons. 1) Never traveled to US 2) approval is in 2007 which before 6 years. I am not sure how this new so called memo is not known to these immigration teams. Or is it a different understanding to this team on the same fact?

[L2EADGC]

Hello Attorneys and Seniors, 

 

 Based on the below information provided by USCIS, it doesn't mention that H1B and L1 periods are coupled. Here is what it says "the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status" . It doesn't talk about time spent in united states in valid H1B or L1 status. My question is if a person is in L1 status during those 6 years, will he still be eligible for H1B ? and can you direct me to any link or document that says H1B and L1 periods are counted ?

 

 

Specifically, the “remainder” period of the initial six-year admission period refers to 

the full six-year period of admission minus the period of time that the alien 

previously spent in the United States in valid H-1B status. For example, an alien 

who spent five years in the United States in H-1B status (from January 1, 1999 - 

December 31, 2004), and then remained outside the United States for all of 2005, 

could seek to be admitted in January 2006 for the “remainder” of the initial six-year 

period, i.e. a total of one year. If the alien was previously counted toward the H-1B 

numerical limitations in relation to the time that has accrued against the six-year 

maximum period of admission, the alien would not be subject to the H-1B cap. If 

the alien was not previously counted against the H-1B numerical limitations (i.e. 

because cap-exempt), the alien will be counted against the H-1B cap unless he or 

she is eligible for another exemption. 

 

Thanks

[deepshar027]

Not sure what is final outcome of this discussion. I have the same query.

Anyone with valid and practical example of going back to US using remainder option on h1b? Immigration lawyers seem  to have various views on this topic.

[LKS07]

Any final outcome on this topic? Any success stories.

[itsmeusa]

@L2EADGC - here you go my friend - read this USCIS memo...where USCIS makes it clear that H1b + L1 period is counted towards 6 yr max stay.

 

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf