H1B Cap Exempt Question


Nexus5

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Hi,

 

I have an approved petition ( I-797B), valid from 10/01/2008 to 09/10/2011. 

I did not get any visa stamped using this petition and did not go to US. 

 

From other threads (mostly answered by jairichi), I understand that I am eligible

for a new cap-exempt petition. 

 

I referred to this communication from USCIS 

 

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

 

C. H-1B “Remainder” Option  ( Page 4) says

 

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.
 
Now my question is regarding the "unless" part of the above statement.
 
Since I never went to US on H1B, I am eligible  for full 6 years of admission. 
Does it mean "I can not apply under cap-exempt category"?
 
Senior member please help me with an answer. 
 
My second question is 
 
Is my petition valid (for getting cap-exempt status) beyond six years also?
 
 
regards,
Nexus5
 
 

 

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My question was " Can I apply for H1B under cap-exempt category even though my approved petition is more than 6 years old?"

Now my petition is 5 years 3 months old. 

 

I was not asking "If I could stay in US for more than 6 years"

 

"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."
 
Could someone please answer the unless part of the question?
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Thanks a lot JoeF

 

Is there any USCIS communication which covers my situation for cap-exempt category?

 

             "I never got H1B stamped using the approved I-797"

 

There have been too many conflicting answers across the forums.

 

"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."
 
I fall under the "unless" part. So I am not sure if I am eligible for cap-exempt..
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