Cap-exempt H1B to cap-subject H1B Transfer ? Options?

USA H1B Visa
1

Hello,

I am currently working in ABC company on cap-exempt H1 and never took part in lottery. I got new job in XYZ company and they are ready to sponsor cap-subject H1.

Please think i got picked in lottery and got approved by Oct 2019.

Questions :

  1. will my cap-exempt H1 get cancelled or do i have choice between cap-exempt H1 and cap-subject H1?
  2. If i choose cap-exempt H1 again then do i need to lottery in future.

Thanks :slight_smile:

2
  1. No, there is nothing called cancelled. It is your choice.
  2. Well, it depends on how you have filed it and how you have use it. The reason is, it is slightly grey area, sometimes USCIS questions, if a user has used the H1B or had h1B status to be cap exempt in future…
3

Hi Kumar,

Thank you for your response.

I am not clear with your second point answer. can you please explain in detail?

Thanks

1 Like
4

In short, if you work on H1B visa or were to be given H1B status using I-94 ( readUS Visa vs Status , then you will be considered as cap exempt. But, if you do not work on H1B and just have approval notice, then sometimes USCIS does not consider you as cap exempt in future as you have not used it and will ask for “has the user had any H1B status in the past to be considered as cap exempt”…this is subjective and grey area, I mean the consideration of cap exempt, so it varies on a case by case…

5

Hello,

Will my application be H1B cap-exempt if I previously had an H1B approval, entered the U.S. on H1B status but only stayed for a week before leaving for personal reasons, and never had payroll generated? My previous employer revoked my H1B. Can a new employer file an H1B transfer based on my previous H1B approval?

Thank you

6

The answer is Yes, a new employer can file cap-exempt H1B. Provide the copy of I-797 approval notice to the new employer and they can file the H1B petition.