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Immigration Issues/Cap-Exempt H1B Petition filing

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Question
Please advice on the below situation:

Initial H1b petion filed : April 2007
Stamping Done : June 2008 but never travelled to US on this visa.

2nd H1b Petition Filed : April 2012 as a cap exempted petition
Attended Visa stamping : Jan 2013 but case went into administrative processing 221G

1. In the above situation if a new employer wants to file another  
  H1b petition, will it be possible to file as a cap exempted or
  it will be subjected to cap?

2. can the new petition be filed immediately or have to follow the
  normal time lines?

Kindly advice on this...

Regards
Sudhakar

Answer
Hi,

The new H1B petition will be subject to the visa cap since you were never in H1B status in the U.S. within the past 6 years.

Since the visa cap has been reached for this fiscal year, the earliest that the H1B petition can be filed is April 01, 2014 (unless being filed by a cap-exempt employer such as an institution of higher education or a non-profit research organization).

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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.

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