H1 B - Validity - Case complicated

[naveenkumarb]

I had a H1 B Issued with Reciept Number - LIN - 05 -198 - 5405, reciept Date June 20, 2005 , class h1 b 
Valid from 10/03/2005 TO 09/30/2008. 

I got visa to come to usa on 18 jan 2008 . Due to 221G query .I came to USA on 31 MARCH 2008 from india. 

I extended my H1B With the previous employer with 
Reciept Number WAC-08-235-51065 
reciept date August 29,2008, Notice date -October 9, 2008 
class h1b valid from 10/01/2008 TO 09/30/2011 

I came back to india on 27 Feb 2009 due to personal reasons and never went back to USA 

Can i still transfer my H1B Reciept Number WAC-08-235-51065 to another employer.

Will my earlier H1 B Still Active according to the quota. 

Can i still aspire to come to USA and work in 2016 or before  .

eagerly waiting for your legal suggestion. 

 

I am in india currently

 

 

Thanks in advance, Please suggest

[jairichi]

You are cap exempt till you reach the maximum allowed stay of 6 years on H1B. Any employer can file a cap exempt H1B petition for you anytime.

[naveenkumarb]

Hi Jairichi, Thanx for the reply.

 

 when could be the last date of filing Cap Exempt H1B in my case. we are in  july 2015 

 

I stayed only 11 months unill the date 27 Feb 2009)  in USA in this six years of H1 B. after that i came back to india

[Attorney_21]

I completely agree with Jairichi's response - you should be considered "cap exempt" until you reach 6 years of authorized H1B stay, pursuant to the so-called "Decoupling Memo" from 2006. This has long been our interpretation on this issue.

 

However, we have recently seen indications that USCIS may not agree with this interpretation, or may be changing their position. 

 

You should consult an attorney in this regard, as this issue has become more uncertain in recent months than it was 1 or 2 years ago, I'm afraid..

[jairichi]

I completely agree with Jairichi's response - you should be considered "cap exempt" until you reach 6 years of authorized H1B stay, pursuant to the so-called "Decoupling Memo" from 2006. This has long been our interpretation on this issue.

 

However, we have recently seen indications that USCIS may not agree with this interpretation, or may be changing their position. 

 

You should consult an attorney in this regard, as this issue has become more uncertain in recent months than it was 1 or 2 years ago, I'm afraid..

Hi Attorney_21,

From your response I understand that it is not a standard cap exempt interpretation agreed by all adjudicating officers at USCIS and from the experience of your law firm you have seen it differ from one case to another. So, in similar cases like OP's do you see many cases with a denial or approval? Your response will clear the air for many who are in a similar situation and in a confused state whether they are cap exempt or not based on a H1B petition filed more than 6 years ago and have not utilized for the entire duration of 6 years. Thanks in advance for your response.

[Attorney_21]

Jairichi:

 

I've recently seen a handful of denials based on the fact that the Beneficiary was "counted against the cap" more than 6 years before filing the current H1B petition. (i.e. like the OP - "counted against the cap" in FY 2006, but attempting to apply pursuant to that FY 2006 cap "number" in 2015).

 

Based on the 2006 Decoupling Memorandum this should not be problematic (that memo actually features an example in it where a beneficiary "recaptures" H1B time after 6 years) but we have, nonetheless, seen these recent denials based on this strict "6 year" interpretation.

 

We've also successfully responded to RFEs on this issue, so USCIS' treatment of this issue does not appear to be uniform. It's difficult to give people advice on this issue, as USCIS has become extremely inconsistent here, and they seem to be (sometimes at least) applying rules that are inconsistent with their prior guidance.

 

I would say to anyone in this situation that this issue is currently in flux, and they should obtain competent advice before they make any decisions in this regard.