H1B Transfer to US employer from India after H1B Petition Expiry


My petiton I-797 was approved in 2006 and I travelled to US for around 21 months From Feb 2007 till October 2008 from the same employer for which H1B petition was approved, Petition was extended till May-2010 by the same employer. I left the employer in Jan 2009 and never went back to US on H1B, Now I wanted to transfer same H1B quota to the new US employer from whom I got the Job offer.

Can New employer apply for the H1B Petition in Cap-Exempt category to utilize remaining 4 years of Quota in the H1B which was approved in 2006?

I have seen some posts where they are talking about 6 years limit from the date of first approved I-797, will it apply in my case?

Please advise.

Thanks in Advance,


Your 6 year H1 clock should be reset as you have been out of USA for more than a year.

Your new employer can apply as a cap - exempt petiton as you already had an approved H1 before.

The clock will not be reset if he goes for cap-exempt H-1. Clock is reset only when:

  • person stays outside US for >1 year
  • person goes through cap again

However, w/o the clock resetting you can go for cap-exempt H-1 petition. You will get H-1 term of 6 years minus time already spent inside US on H-1.

You mean to say even if first petition approval date is more than 6 years in the past, we can still apply in Cap-Exempt category?

First petition approval date is: October 2006.

You may be able to use it as H-1 was valid till May 2010. Check w/ your employer/attorney.

Have you transferred and it worked… kindly share your experience and suggest us