Filing New H1B Petition under CAP Exemption

Hi Forum,


My Scenario


Was in US till Feb 2012 on L1B

Company A has sponsored H1B Petition(Without COS) in Nov 2011 which got approved in Mar 2012(Stamping has not been done yet)


Now I am in India, Company A does not have any Job Offer


I came to know that H1 Transfer is not possible, but a new H1 can be filed which would be exempted from CAP count, since I am already been counted in 2012 Quota.


Now I got a Job Offer from Company B


Company B Attorney has mentioned the below 

"Since you never actually worked on your cap subject H-1B, that H-1B is considered abandoned or never activated. It would be as if the H-1 was never filed, for that reason we are unable to reclaim the status for you."


Can anyone point out the H1B Clause which says new H1 petition can be filed under Cap Exemption for my case? 




As per my understanding after reading various forums and sites related to immigration, a company can file cap-exempt petition on your behalf citing the previously approved H1B petition, even if the person did not travel to US on that. However, I do not have any US Govt. links or resources to share with you that states this clause.

Please have this verified with another immigration attorney.

Hi Siva,
I was in the same boat as you are … I spoke to my company about it, they checked with an attorney in US and got to know that I am cap exempted. My case was this -
Filed H1 on April 1st 2011 - got approval in April last week of 2011 … I was on L1B then… But had to come down to India due to personal reasons and never could make it back …
Went for stamping, ended up with 221(g) then decided not to try anymore else it will result in unwanted rejection. But luckily my company came forward to file my H1. Told them about this, they crosschecked with US attorney and it was confirmed that I am cap exempted.
They have filed for my H1 and we are still waiting for that much awaited receipt number.
Please take it forward to your company visa team and ask them to discuss about this to some good attorney.
I was having the same doubt when Sujith told me the same thing. Thanks Sujith for your guidance, it really worked for me sir :slight_smile:

Good Luck Siva
Cheers !!
Niks …

@Nikhil - Good to know that you were eligible for cap-exempt filing. Please update here when you get your receipt number as well as adjudication as we will have another confirmation that such case is valid.

Thanks Nikhil & Sujith

Hi Sujith,
I got my receipt number today under the cap exemption quota. Hope this helps others who are facing the same dilemma.

My petition was filed on June 29th and I got the receipt number on August 22nd.