H1B stamped but not travelled

[mrcb]

Hi,

 

My H1B was approved in Oct 2006 and got stamped in Oct 2006 itself. My H1B was valid upto 1st Oct 2009. But I have not travelled to USA from 1 Oct 2006 till date. So if my new employer wants to file a H1B, then am I eligible for the Cap exemption or will I be part of the Quota only? Any clarification on this is really helpful. Thanks in advance.

[jairichi]

Hi,

 

My H1B was approved in Oct 2006 and got stamped in Oct 2006 itself. My H1B was valid upto 1st Oct 2009. But I have not travelled to USA from 1 Oct 2006 till date. So if my new employer wants to file a H1B, then am I eligible for the Cap exemption or will I be part of the Quota only? Any clarification on this is really helpful. Thanks in advance.

You are cap exempt.

[maverickp]

Correct me if I'm wrong here but isn't one cap-exempt only until 6 years from the date of first issue of the first H-1B? For the OP, the original date of issue was 1st Oct 2006, so the 6 years ended in 2012. So how is the OP cap-exempt?

[jairichi]

Correct me if I'm wrong here but isn't one cap-exempt only until 6 years from the date of first issue of the first H-1B? For the OP, the original date of issue was 1st Oct 2006, so the 6 years ended in 2012. So how is the OP cap-exempt?

I agree with you maverickp. There is confusion about this 6 years from the date of H1B petition approval. There is a notion that unless the max allowed of 6 years are used one is allowed to be cap exempt anytime irrespective when the initial cap subject H1B petition was approved. Only an attorney can gives us proper answer for this.

[pontevecchio]

No. There is no 6 year time period. If a person is counted once in the cap he has a total of 6 years in H1 status available with no period more than 3 years at a time. If he works for say 2 years and leaves he can claim the remainder of his H1 and it is called the remainder  option for a reason and this is not cap subject and he needs a H1 petition approved and the visa and can come over. If he leaves for more than 365 days he can THEN have a H1 sponsor file a cap subject H1 petition if the cap is open for a start date in October. If he leaves for more than 365 days he can of course claim the remainder option as explained above. Date of first issue is immaterial.

[mrcb]

When i searched over some discussion forums, some people are saying the start date will be counted from the petition approved date i.e 1st Oct 2006. and I am not eligible for the Cap exemption.  But some others are saying that since the H1B was valid upto 1st Oct 2009, if an empoyer files my new H1B then it will be cap exempted because we have to count 6 years from that last valid date i.e 1st Oct 2009 since I didnt travel to USA before the last valid date and I can get 6 more years from 1st Oct 2009... Any expert advice please ?

[pontevecchio]

Simple. Let your employer file in April for a start in October. You waited so long. What difference? instead of reaching for straws. The employer files. If he wants to do a non cap H1 he will ask his lawyer.

[maverickp]

Thanks for the explanation, jairichi and pontevecchio.