had an H1b valid from 05- 08. Specifically I worked on the h1b from 06 - June 07 i.e I was in h1b status till June 07, after which I left the US. Few questions
1. On April 1st can I file a cap exempt petition instead of a cap petition , which would allow me an immediate start date ?
2. Can I filed a cap exempt petition even after June 13, which is 6 yrs plus my last day in h1 status? Some of my friends tell me I cannot since it would be more than 6 yrs.
3. What about my initial petition approval date ,Its 2005 , does it matter in the remainder option?Or the last day in the US in enough to claim cap exemption?
2 Answers from Attorneys
Since you have been out of the U.S. for such a long period of time, you might not be eligible to apply for the "remainder" of your unused H-1B visa time from the prior period of stay. However, this is technically not considered "cap-exempt", which has a totally different definition.
If you have U.S. company that wants to petition you, you should speak with their Immigration Attorney about whether or not you can apply under the "remainder" option.
There are "cap exempt" petitions based upon employment with a non-profit or research agency, and there are petitions which are not counted against the cap because the beneficiary has already been counted against the cap in the proceeding six years. I am not clear on the nature of the perspective employment, but you may potentially be able to file now as having been previously counted against the cap, and there would not be a reason to wait for April 1 to do so (beyond that it may take that long to get the LCA certified and such).
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