Approved H1b Petition I-797C(Unstamped & Expired) - Eligibility for Cap-Exempt?

Hi All,
One of the Employer sponsored H1B in Apr-2008, It got approved and have valid I-797C Notice of Action from the employer. Due to some personal constraints, I have not attended the consulate interview at that moment and have not taken up the interview yet, also didn’t entered US till now. It’s been 6+ years now.

My Question is,

  1. Can I use the same approved petition(I-797C, Notice of Action) to process with another employer who can do the exchange/transfer Process of my petition.
  2. Will it accepts USCIS in Out of Cap-Exempt and do the process, Can I approach new employer now.

Please let me know how to proceed further to get it valid.


  1. Yes, but it must have expired 2009 or later

  2. Yes, if it satisfies point 1

I heard that an approved I-797 is valid for 6 years to extend or renew the H1 status. If that holds good, April 2008 approval has already crossed 6 years.

Its not that way. Its valid for 6 years from expiry, not from approval date. I saw many such cases, even my friends

Thanks for the clarification. I will make a note of this understanding.


I am in a similar state. I had my i797 approval in 2008, but couldn’t proceed at the time. I would like to do that now.

Ranjith, what’s the status on your Out of Cap Exempt?

Appreciate any feedback. I am seriously looking to make a move without getting in the hassle of the lottery system.

Hi Friend,
Its valid for 6 years from expiry, not from approval date as mentioned by RaNa. So, please check your validity and approach any employer. It worked for me.


Thank you so much rthogiti…Did your employer also had to pay the revised visa fee or only the transfer fee. Thanks

Hi Yogesh,
It will be COE(Change of Employer) and the new employer should pay the transfer fee and go with Cap-Exempt to get the I-797 Approval. If you approach any employer they will let you know the details.

Thank you so much Ranjit. Interestingly one of the consultant and couple of attorneys on told me that i am not cap exempt as its 6 years from approval. Is it possible for you to talk. If yes then please ping me your number on