H1 cap exempt or not?

[chetmate]

I was in the US working on H1 visa from 2003-2006.

The my H1 was renewed and the the validity of my last i-797 was from Jan 01, 2007 to Dec 31, 2009.

However, I exited the US in Dec 2006 and have been out of the US since Dec 2006.

I want to apply for an H1 again.

Will I come under the H1 quota or will I be exempt? I also have a Masters degree from the USA.

Please help.

[jairichi]

 

I was in the US working on H1 visa from 2003-2006.

The my H1 was renewed and the the validity of my last i-797 was from Jan 01, 2007 to Dec 31, 2009.

However, I exited the US in Dec 2006 and have been out of the US since Dec 2006.

I want to apply for an H1 again.

Will I come under the H1 quota or will I be exempt? I also have a Masters degree from the USA.

Please help.

 

You are cap exempt and you would get remainder of years. 

If employer files a cap subject H1B petition then you would get 6 years.

[arjunanand]

you can apply for H1 transfer you can be in CAP Exempt

[pontevecchio]

You will be exempt for the remainder of your H1 which means about 3 years with the ability to start on approval. If you have a sponsor file in April a cap subject H1 you can get 6 years again but starting in October.

[Attorney_25]

Please see my post at http://forum.murthy.com/index.php?/topic/71540-h-1b-cap-issues/page-2#entry280015.

 

While it's possible USCIS may accept a cap-exempt petition for you, under the specific wording of the law you are not cap exempt. I've seen USCIS accept petitions under similar circumstances, but an employer would be risking all the filing fees and costs in attempting this. If your employer can wait until October 1 for you to start, I suggest that you have a cap-subject petition filed for you. To do that, you (and your employer) should hire the attorney now and get the process started. Waiting too long risks not being able to get the petition filed by April 1, for example if the DOL's icert system breaks down (again) and fails to certify your LCA on time.

 

An advantage to having the cap-subject petition filed is that you would be eligible for a full 6 years of H-1B rather than just the remainder of your previous 6 years.

 

Please keep in mind that Masters degrees from for-profit US schools do not qualify for the US Masters exemption.

 

If your petition is not selected in the lottery, then your employer can weigh the risks of filing a cap-exempt petition, but anyway it looks like you don't have much time left from your previous 6-year period and that a cap-exempt petition would gain you an approval for only a few days or weeks.

[chetmate]

Attorney_25: this is extremely helpful. 

So, the best option seems to be to apply within the cap on April 1 this time. If it does not come under the lottery, I can get another cap exempt petition filed.

I have a masters from a state university. would this change anything whether I apply within cap or as cap exempt?

Thanks a lot.