H1B under cap exempt category


Could you please check my case and suggest if I can go through the cap exempt H1B category this year?

  1. Through my previous employer ‘X’ I had got my H1B in 2008 valid through 2011 while in India.

  2. I traveled to US in Dec’2008 and stayed in the US from Dec’2008 - Oct’2009 (10 months), and returned back to India.

  3. Again, I traveled to US and stayed there from Apr’2011 - Jun’2011 (2 months) and got my H1B extended from 2011 to 2013.

  4. My H1B got expired in Sep’2013.

  5. I left job at employer ‘X’ and joined employer ‘Y’.

In spite of having switched from employer ‘X’ to employer ‘Y’ can my employer still apply the same H1B through cap exempt?

Will this be treated as H1B transfer or extension?

From the 6 years time frame, since I have used 10 months, and another 2 months later on, how many years more will I be able to use?

Since I have got different views on this, am unable to decide. Please advice.

Thanks a lot !

Last time you held H-1 status was Jun 2011. So you are cap-exempted for 6 years from that date - which brings it to Jun 2017.

Underneath, both transfer and extension involve filing a cap-exempt petition for you by the new employer. From Y’s perspective its a brand new application (you dont have H-1 through them), so you can say that it is transfer.

They can request a time frame of 3 years, which USCIS will process and approve based upon submitted documents. Overall, you can stay inside US for at most 6 years, of which you have already used 12 months.