My H1-B Out of Cap Eligibility


I was working with company A between April 2003 to August 2007. I was put on US assignment on H1-B by this company. I travelled to US in Oct 2005 and was there until May 2007. My H1-B approval notice was valid till 6 Jan 2007. Since I was in US that time, I had filed for an extension in Feb 2007 itself at Onsite. I had to come back to India in May 2007 due to personal constraints and left company A in August 2007. As per USCIS website, H1-B extension request was approved in August 2007.

I joined company B immediately after I left company A. I went to US again in Jan 2010 on L1-B from this company and was there until May 2011. My Visa expired, sometime, in Dec 2012. I left company B and joined company A again in Feb 2012.

So my Total stay in US on H1/L1 is less than 6 years.

I do have a copy of I-797 from Company A. I do not have any documents for H1-B extension which I had filed in Jan 2007. I may not have any L1-B documents as i had to return it for Company B as part of exit formalities.

Two questions:1. Am I eligible for Out of Cap for H1-B?2. If answer to Q#1 is yes, what documents do I need to apply for H1-B Out of Cap?

What was the last day you were inside US on H-1B?

How many months have you already spent inside US on H-1 and L-1 (I didn’t do the math based on your provided dates).

Hi Saurabh,
I left US in first week of May 2007 on H1-B. But I know that my H1-B extension was approved. However i do not know the expiry date of it.

I was in US for total 3 years. So I still have 3 more years left.

Usually H-1 cap-exempt can be filed within 6 years of filing date or last date when you left US on H-1 (whichever is later). In your case that window elapsed in 2013. However, I have heard that USCIS is relaxed about implementing this guideline.

It is worth a chance looking at a new employer and asking their attorney if they can file the cap-exempt petition for you. You would need a copy of original H-1 notice and copy of last I-94. Your most recent 797 can be retrieved using FOIA, if required.

Thanks Saurabh for quick response. I am exploring the option with my current employer. If they do not agree, I will try to look for a new employer.

you mentioned that most recent I 797 can be retrieved. Can I do that or employer has to do it? Also is it H1-B or L1-B. My assumption is H1-b. But want to confirm. Looks like it doesn’t matter if I was on L1 status in US in 2011.

Its H-1B. Search for FOIA. You or employer can file it for USCIS. I think it takes 2-3 months to process. If you are outside US, I am not sure if USCIS will send copy to your home address. So it would be better for new employer’s attorney to raise it, if needed.

Thanks Saurabh. I am waiting for my employer to respond. My employer, being one of the top Indian IT companies, do not process the cases where they see the higher chances of rejections. Fingers crossed… Let’s see.