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Immigration Issues/H1B cap exemption for old expired H1b


I have applied for  H1B in 2008 and my application have been selected in the lottery. However I didn't go for visa stamping. And the company which filed my case had shutdown and I donít have I-129 (but I have the receipt number). I would like to know if I can be exempt from H1B cap if a new employer files H1B case.


Usually, a person who has a an application for H-1B approved within the last 6 years is not subject to H-1B cap. Since your application for H-1B was approved in 2008, you were not subject to H-1B cap until 2014. Thus, you may not be cap exempt because your remainder time option is now more than 6 years from the date your initial petition was approved. However, you can try to file under cap-exempt status. Indeed, USCIS sometimes approves a new H-1B as not subject to the cap although the H-1B time has an approval notice older than 6 years. This is due to the lack of clear guidance in this area and the ambiguity of the statute itself.

Hoping that my answer is useful to you, I wish you good luck.

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Hung Viet Can


I can answer nearly all questions concerning Canada and U.S. immigration.


I have worked for more than 20 years in the field of Canadian immigration and more than 7 years in the field of U.S. immigration.

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