How to qualify for Non-cap or cap exempt H1b if we had H1b approved in past

Hi Friends,

I has my H1b with Company A during 2007 and worked for 2 yrs in US. I came back to India by mar 2010 and working here since then. Now I am working for Company B. I am planning to process H1b with company B sometime during August.

Can I apply non-cap or cap exempt H1b as i had approval earlier?

Please clarify.

I have read in one of the websites ( that beneficiaries with a previously approved H1B petition are eligible for cap-exempt filing, subject to a few conditions. Please read below the excerpt from that site.

“The H1B Cap exemption also applies to workers who are currently outside the US, as long as they held an H1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the US.”

“and have not spent a full year outside the US” - except for this condition, you are eligible for cap-exemption.

Its better to get your case clarified with company B or any immigration attorney.



In addition to what Sujith said, a person can go for cap-exempt petition even if they have spent 1 year outside US. Spending 1 year outside US gives them the option of going cap-exempt route or filing a cap-subject petition (which would reset their 6 year clock).