EMP1-2006 approved, EMP2-2007 approved, then USA exit 2008, not returned back again...can file under CAP EXEMPT?


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I went to US through EMP1 on H1B visa in April 2006,  transferred the visa to EMP2  in Sep 2007, and came back to india in April 2008. After that never tried go back to US. Now the visa status is expired. Can I use the same visa and file for renewal and go to US again for the remaining period out of 6 yrs allocated?


Thank you

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Yes.you are cap exempt.


This is covered in the USCIS Micael Aytes Memo dated December 5, 2006http://www.uscis.gov/USCIS/Laws/Memoranda/Stati... 


There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the "remainder" of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either 

(1) to be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted or 

(2) seek to be admitted as a "new" H-1B alien subject to the H-1B cap.


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