Cap-exempt status for Expired H1B Petition, Visa stamped but unused


I had an approved H1B-petition in June 2009, filed by Company A. This expired in June 2012. However, in February 2010, I had a H1B-Visa stamped. The Visa expired in September 2012.

But, I never traveled to the US on that H1b-visa.

I am interviewing with another Company B now. Do I come under the H1B cap-exempt if the new employer files on my behalf?

One big difference is that earlier, it was for a technical role and now it is for a marketing role. Does that impact me?

Thank you

Based on some reading here and elsewhere, this is what I infer. Expert boarders, please comment -

  1. In the last 6 years, you must have been counted against the Cap. i.e., if your previous petition was filed in the last 6 years (and you got it), then you are cap-exempt this time around.

  2. Your new employer always has to file a new petition. If your visa is still valid form the previous petition, you can enter the US. Else, get the approval for the new petition, then apply for the Visa stamping and then pack your bags.

  3. You dont need to have entered the US on that H1B visa (i.e. used the visa). You dont need the two pay stubs. Your employer is after all filing a brand new petition on your behalf. You are only opting the benefit of cap-exemption from the previous petition.

  4. Since your employer file a brand new petition, you get 6 years validity in the US from the time of approval of the petition.

Expert boarders, please comment…

Many thanks


This is correct!

Is there anyone who had a real experience on this?