Am I eligible for Cap Exempt?

I have applied for H-1B in 2012 going through the CAP with company A. I got approval notice from California Service Center I-797B only on October 1st 2012 .I did not use the H1-B at all - meaning did not go to consulate to get stamping done and of course it is now expired.

My H1B petition was not stamped.It was given only one year validity (OCt 2012-Dec 2013).The H1-B got expired now without stamping.

I have moved to Company B and the Company B is planning travel for me.

  1. Can I use the same petition for Company B?
  2. Will I get Cap Exempt?
  3. Do we have any risk if I use the same H1B?

Any help answering regarding these questions will be highly appreciated.

  1. B will have to file a cap-exempt petition for you using A’s petition as reference and proof of having made through the cap

  2. Yes

  3. You cannot use the same H-1B. B needs their own petition, which will be cap-exempt.

Thanks Saurabh

Can the company B can apply for H1B at any time?

Usually you are cap-exempted for 6 years - so until 2018 in your case. However couple of recent approvals were granted even after 6 year term had elapsed.

Hi Saurabh,

I have contacted one of the lawyer in US through email regarding the above question and he is saying me that

“No, I am sorry, you cannot. You must have current legal status and file a new petition, starting 04/01/2017, to begin working on 10/01/2017”.

Can you please clarify me how I will know my H1B legal status and whether am really eligible for Cap exempt?

Any help regarding this will be highly appreciated.