H1 transfer from India now on H1 that expired in Oct 2005

I was on H1 from Oct 1999 until Nov 2003. The H1 validity was until Oct 2005.
I had to get back in Nov 2003 to India due to personal reasons.
I was employed by companies in India after Nov 2003.
Now, there are US employers asking me to get back to US. I have two years work time left on the H1. Is it possible to transfer the H1 ? Or do I need to go for a new H1 ?

New cap subject H1B in April 2014 you can start working after Oct 2014

I have already been assessed under the CAP. Why do I need to go through it again ? Are there any references to government documents ? murthy.com says it is possible to transfer but does not say anything like a limit by when H1 transfer needs to be done. Please comment.

you will be subject to cap as your approval was done more than 6 years ago! you should have done it before oct 11. you are late by 2 years! so now you will be subject to CAP

Thanks. Three questions. (1) I have been searching for a government published document covering rules on H1 and H1 transfers but couldn’t find any. (2) Given the fact that I was on H1 earlier, will I have an advantage when I go for a new H1 ? (3) I understand H1 selection is on lottery basis. Do I run the risk of not getting a H1 visa ?

2014 may not be a lottery year! so it all depends on luck…there is always a risk. your application will be treated like any other application if all the documents are in place you will make it through!

The official text says “Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.”

You can search for it online to see multiple sources including one from USCIS.

Section C, (g) page 19 talks about the 6 year rule on CAP exemption.

I understand that I will have to face the CAP, in line with what snow winter communicated last time. But, there is a statement from a law firm which goes as follows : “Attorneys at the xxxxxx Law Firm have filed cases beyond the 6 year limit and had them approved”. I do not know in which direction I need to go. New H1 petition ( with old H1 and CAP exempt petition included ) ? I have a valid B1 presently. Is there anything more I can do to move back to US in the shortest time possible ? Please advise.

If you file Cap exempt visa, for sure you will get RFE and denial. Why are you risking denial on your file? Plus your approval is not done something like 6 years one month…it was done full 8 years back

B1 is not for working be very careful USCIS keeps a strict watch on misuse of it. I have seen cases in my old company where their H1 visas were cancelled.
L1 is another way in which you can try. But you need to work in their Indian branch for atleast 1 year.
These are your only options.

Thanks. I have embedded systems/wireless experience from very good companies. If you are in touch with organizations that can accept me initially and later process L1 visa, please help.

A US recruiter from a reputed hiring company says
“An old H1 with time left on it can be reactivated in the US with a new job and employer. All you need is the old H1B Approval notice, a new job offer with a specific company and tons of other paperwork plus a company with the money to pay all the fees”

A US attorney says this.

Hi,
Double checked. There is a memo that says you can use the two years and not be subject to the cap. You don’t get a new 6 years though.

snowwinter, if it is going to be working after Oct 2014, what is the timeline for a new H1 ?
Submit before April 2014 and get an approval by Oct 2014 is what I understand.
Is there an advantage in submitting the H1 paper work early, say Oct 2013 ?

sorry to say rules are rules…you come under CAP as your petition was approved more than 6 years earlier( Tell this to the lawyer with actual dates). Lawyer could be dishonest ( most just want to make money in processes) . You can also confirm this with some decent lawyer and other forums if you don’t trust me.

You cannot apply H1 before April 1st. Your application will be rejected.
In 2013 quota got completed before April 5 so you got to be ready by Apr 1st.

Thanks snowwinter. Unfortunately, it is a hard rule. It is so sad that there is no difference between people who have worked on H1 in the past and those who aspire to be fresh on US soil.

Sad indeed…don’t know the history behind this rule but it is this way.
You can keep your documents ready before 1st April - if you are cap subject you will get full 6 years rather than 2…so its a good news

Thanks Snowwinter. So kind of you to be prompt with your replies. Here is what an attorney has got to say. “The government has interpreted its own regulations in different ways. Unless the government issues a new memo addressing this issue/creates new regulations/etc, you are not going to get a definitive answer to this question”