You are here:

Immigration Issues/H1b cap exemption clarification

Advertisement


Question
QUESTION: Company A file my H1B visa in April 2007 It had got stamped July 2007. I had not travelled USA in this Visa due to some problem and risk.
Company B in 2008 told they can change employer in their name. It is like new application but will not come under quota.
They filed h1b employer change or something which i m not sure. It got approved and it got stamped in July 2008.

Due to recession and all i could not utilize this visa and got expire on 30th May 2011.

Now FY-2012 cap has been reached on 22nd Nov 2011.

Can I be considered as cap exempt case ? Now if any employer file, will it come under quota or it can be treated as cap exempt case ?

I can not wait for FY 2013 (Even after successfull h1b visa, i will be able to start work in Oct 2012 only)

Kindly give your expert answer in this query and oblige me.

ANSWER: Hi,

In our experience, you will not be subject to the visa cap as long as copy of earlier H1B approval notice is attached to the new H1B petition being filed.

---------- FOLLOW-UP ----------

QUESTION: Thanks a lot Mr Arora,
In Hindi - Aapko Bahut Bahut Dhanyawad !!!!

This year iNine Tech inc, filed petition. Since on 22nd Nov onwards USCIS stopped accepting appplication. It came back to them. they got late in filing.

I am requesting them to file under Cap Exemption Category.
but iNine is telling, Cap exemption will not applied on my case.
How I will convince them ? Is there any written rule in any authenticated site(USCIS etc) ? or suggest me the other way to convince them.

Answer
Hi,

There is no official rule. It is only in our experience that the USCIS will accept H1B petition within the visa cap when filed with copy of previous H1B approval notice as long as the previous H1B approval notice was issued within the past six years.

The employer probably prepared the H1B petition as being subject to cap, and did not attach previous H1B approval notice, unfortunately. However, you are totally dependent upon the employer and we cannot provide any additional guidance.

Immigration Issues

All Answers


Answers by Expert:


Ask Experts

Volunteer


Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

©2016 About.com. All rights reserved.