H1b Cap Exempt Question


krishmah

Recommended Posts

1) EAC-XX filed by Employer A

Period of Approval : 10th October 2007 September 9th 2010

 

Did not travel to US 

 

2) WAC-xx filed by Employer B on Cap Exempt Category

Period of Approval:  28th April 2008 to 11th May 2010 

 

Travel Period : Jan 9th 2010 to March 12th 2010 at US

 

3) WAC-xx – Extension petition filed by Employer B

Period of Approval:  12th March 2010 to 11th May 2011 

WAC-XX – Extension petition filed by Employer B

Period of Approval: 12th May 2011 to June 3rd 2012

 

Travel Period : March 19th 2011 - May 19,2012  at US

 

4) WAC-XX – Extension petition filed by Employer B

Period of Approval :June 3, 2012 to 31 May 2014

 

I have been in India since May 2012. Now I am with Employer C. Employer C wants to file H1 Petition for me. Can they file under cap-exempt or should they file new petition in current 2014 cap?

 

 

Employer C feels that my initial petition was approved in 2007 and I have completed 6 years in 2013 and hence I cannot be filed under cap exempt? Is that how it is being done? Or do they calculate based on my stay at US?. If you look at my stay at US on H1, it has just been 14 months out of  max 72 months that is maximum possible. Can they file under cap exempt for remaining period(72-14)?

 

Please help me on this.

Link to comment

 

1) EAC-XX filed by Employer A
Period of Approval : 10th October 2007 September 9th 2010
 
Did not travel to US 
 
2) WAC-xx filed by Employer B on Cap Exempt Category
Period of Approval:  28th April 2008 to 11th May 2010 
 
Travel Period : Jan 9th 2010 to March 12th 2010 at US
 
3) WAC-xx – Extension petition filed by Employer B
Period of Approval:  12th March 2010 to 11th May 2011 
WAC-XX – Extension petition filed by Employer B
Period of Approval: 12th May 2011 to June 3rd 2012
 
Travel Period : March 19th 2011 - May 19,2012  at US
 
4) WAC-XX – Extension petition filed by Employer B
Period of Approval :June 3, 2012 to 31 May 2014
 
I have been in India since May 2012. Now I am with Employer C. Employer C wants to file H1 Petition for me. Can they file under cap-exempt or should they file new petition in current 2014 cap?
 
 
Employer C feels that my initial petition was approved in 2007 and I have completed 6 years in 2013 and hence I cannot be filed under cap exempt? Is that how it is being done? Or do they calculate based on my stay at US?. If you look at my stay at US on H1, it has just been 14 months out of  max 72 months that is maximum possible. Can they file under cap exempt for remaining period(72-14)?
 
Please help me on this.

 

An employer can file a cap exempt H1B petition and you would get 6 years - time already spent on H1B status in US i.e. you will get 58 months.

Link to comment

I completed my 6 years H1b in 2008. I was able to file I-140 and it was approved thus i was able to extend my h1b to another 3 years up to oct 18, 2011. my priority date for this I-140 is nov '07.

by 2010 my employer faced difficulties and told me it will close anytime. Even before it closed in early 2011 i went back to the Phils. to serve the mandatory 1 year exit. i left US on Feb 11, 2011.

it's been almost 3 years since i left US. Right now i am in contact with a possible employer/sponsor for a new h1b. Will my new H1B petition Cap-Exempt?

Link to comment

Find a new employer. They are so unfamiliar with H1B rules as to make this basic error that you are at risk of being asked to violate H1B rules.

Sorry. I am not sure if I understand your statement "that you are at risk of being asked to violate H1B rules.". Will I be violating any rules by availing cap exempt? Should I then go for cap subject?

Link to comment

I completed my 6 years H1b in 2008. I was able to file I-140 and it was approved thus i was able to extend my h1b to another 3 years up to oct 18, 2011. my priority date for this I-140 is nov '07.

by 2010 my employer faced difficulties and told me it will close anytime. Even before it closed in early 2011 i went back to the Phils. to serve the mandatory 1 year exit. i left US on Feb 11, 2011.

it's been almost 3 years since i left US. Right now i am in contact with a possible employer/sponsor for a new h1b. Will my new H1B petition Cap-Exempt?

If your I-140 has not been revoked then new employer can file a cap exempt petition based on that. If I-140 is revoked you need to go through quota again in April 2014.

Link to comment

An employer can file a cap exempt H1B petition and you would get 6 years - time already spent on H1B status in US i.e. you will get 58 months.

My employer's immigration team said they cannot file it as an exempt as my initial petition date is not within last 6 years and it looks like their attorneys have told them that a petition is not eliglble for cap exempt as long as it is not within the last 6 years and they have received denial whenver they filed cap exempt for cases whose original petition approval was 6 years older.

Link to comment

My employer's immigration team said they cannot file it as an exempt as my initial petition date is not within last 6 years and it looks like their attorneys have told them that a petition is not eliglble for cap exempt as long as it is not within the last 6 years and they have received denial whenver they filed cap exempt for cases whose original petition approval was 6 years older.

That was based on old immigration law. There is a new memo that clarifies USCIS stand on cap exempt H1B petitions filed after approval of cap subject petition more than 6 years ago. Talk to an independent attorney.

Link to comment

I am in same exact situation like sweety06 case where inspite of providing Ayetes memo, they say I shud have had my initial approval in last 6 years and they claim that they have seen cases of USCIS denying the petition for this.

 

May be USCIS should release one more memo to clarify this for people as it is not very clear

Link to comment

I am in same exact situation like sweety06 case where inspite of providing Ayetes memo, they say I shud have had my initial approval in last 6 years and they claim that they have seen cases of USCIS denying the petition for this.

 

May be USCIS should release one more memo to clarify this for people as it is not very clear

You know what, you could contact an attorney from murthy forum. I bet they would have helped people in similar situation like you.

Link to comment

Archived

This topic is now archived and is closed to further replies.