H1b: weird scenarios and associated rules questions

[vronm]

Hi,

 

Long time follower, first time poster here. Blogs here have always been very helpful, thanks Murthy.com for this space.

 

Here is my situation:

 

My H1b was first approved and started on Oct 2013 and then at somepoint i changed jobs and my new 797 was approved till July 2016. I quit my job in November 2014 and came to India.

I have a company willing to initiate my H1b Transfer and I am targeting Jan 2016 to start the job. This is the same company which had sponsored my H1b the first time too. My assumption is that i will be CAP-EXEMPT and can easily file my paperwork as a transfer (and not need to apply in April 2016 as a fresh candidate).

Also, since i came back to India, after i quit the job, my passport was never stamped with any H1b. Moreover I have a new passport now (old one expired), not sure if that makes a difference.

 

Here's my question 1:

I have heard some half-baked conversations about there being a 1 year out of US stay rule around this situation. Something like one does not qualify as Cap-Exempt if they have lived out of US for more than an year. Can someone clarify if or not there is any such rule and provide details. I will really appreciate the guidance.

 

Here's my question 2:

I was planning to get the H1b transferred to the said company while I am in India. Then schedule the VISA interview and get the visa stamped before going to US.

However many people are suggesting me to rather gray path of going to US on a visiter VISA and then applying for a Change of Status to H1b (or H1b Transfer). Can someone also provide some details around this scenario.

 

All guidance and critique will be much appreciated.

 

Thanks,

Vron M.

[jairichi]

1. You are cap exempt.

2. If you do that you end up getting deported or looking at a ban. Employer files a cap exempt H1B petition. On approval you can travel to US with a valid H1B visa, I797 and supporting documents.