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Approved H1b Petition In 2008 But Not Stamped

Discussion in 'AC 21 H-1B Issues' started by Naveen Kumar Prodduturi, Feb 10, 2015.

  1. Naveen Kumar Prodduturi

    Naveen Kumar Prodduturi New Member

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    Dear All,

    I have an approved H1B Petition in 2008 and in the Petition it is mentioned that validity 10/01/2008 to 09/25/2011. During this period (including till now) i have not gone for Stamping. during above period i have traveled to US on B1 for couple of month. Now i want to apply for H1B. can I use approved Petition number as CAP exempt. currently i am in India.

    Please suggest

    Thanks
    Naveen
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I don't think that you can since you never obtained a visa or H1B status.
     
  3. Naveen Kumar Prodduturi

    Naveen Kumar Prodduturi New Member

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    Thanks James for the Clarification. But here is catch. One of My Friend, his petition was approved in 2007 and he did did not gone for stamping till 2013. in 2014 June (almost 6 years 8 months) he applied for H1B with same petition in cap exemption. with this senario, can i apply for h1B.

    · My H1B petition got approved in 2008.
    · I could not get my VISA stamped because of my personal reasons.
    · No H1B visa stamping, so no travel on H1B. But I did travelled once on B1 for 3 months.
    · My H1B petition got expired on 25 Sept 2011.
    · I come to know that, I can get CAP exemption, if my petition has been approved in last 6 years.
    · Now it is close to 6 years 5 months. Does this mean that my 6 year period is over & my H1b petition cannot be reused for Cap exemption?
    · If new employer file the new H1B for me, Will I get the Cap exemption OR do I need to wait for New CAP to start?
    Note: One of my friend petition was approved in 2007 and he applied in H1B cap exemption in 2014 and got it VISA stamped.


    Thanks
    Naveen
     
    Last edited: Feb 23, 2015
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    In my opinion, you are subject to the cap. Don't take action based on what you hear about in other cases. There are two sound reasons for this:

    a. people lie about the facts of their cases
    b. USCIS makes mistakes.
     
  5. Krishnamoorthy

    Krishnamoorthy New Member

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    Hi

    I got my H1B stamped in Oct, 2007 and expired in Sep 2010 and I never used it. Now its more than six years since I got H1B stamped. Am I eligible for new cap-exempt H1B in 2015.

    Is that six years counted since expiry of my visa (i.e sep 2010) or stamped date Oct, 2007.

    Does it make a difference whether I used my Visa or not to avail cap exemption.

    I am getting contradicting opinion about my cap exemption eligibility.

    Form I-129 has the below option to determine the cap exempt eligibility:

    " The beneficiary of this petition has been counted against the cap and : (1) was previously granted status as an H1B nonimmigrant in the past 6 years, (2) is applying from abroad to reclaim the remaining portion of the 6 years, or (3) is seeking an extension beyond 6 year limitation based upon sections 104(c) or 106(a) of the AC21."

    It does not say any thing about unused and expired petitions?

    My current employer is willing to file for H1B if I could prove him my cap exemption eligibility.

    Your response will be very much appreciated.
     
    Last edited: Jul 2, 2015
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It has nothing to do with your visa and everything to do with how long you have been in the U.S. during the past six years.
     
  7. Krishnamoorthy

    Krishnamoorthy New Member

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    You mean to say, I am not eligible for cap exemption.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Where have you been for the past six years? Do you have an approved I-140?
     
  9. Krishnamoorthy

    Krishnamoorthy New Member

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    I have not visited US using my Visa and don't have an approved I-140 either.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If you haven't been in the U.S., then you are cap subject.
     
  11. Krishnamoorthy

    Krishnamoorthy New Member

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  12. Satheessh

    Satheessh New Member

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    Hi,
    I have got my H1B stamped and was valid from 1st Oct.2007 to 31 Aug.2010,
    but I traveled to USA on 28th April 2008 and
    visited back to India for 15 days (came to India on 8th Aug. 2008 and returned to USA on 25th Aug. 2008) and
    Finally returned back to India on Jan 6th 2009, got new 797 from another employer in 2008 which was
    valid from 8th Dec. 2008 to 1st Oct. 2011 but did not used this second 797 for stamping.

    Overall I stayed in US for 7.5 Months approximately.

    Again I went to USA on B1 visa in May 2014 for 14 Days and came back to India in 14 days only (however the admission was given till Nov. 2014).

    Please kindly check and suggest me if i am eligible for cap exemption, since i stayed in USA for only 7.5 months.

    Thank you in Advance
    Sateesh J
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It's hard to say. Under current policy, you probably qualify for cap exemption. Under the proposed new regulations, you don't.
     
  14. Muralidhar P

    Muralidhar P New Member

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    Hi Ron Gotcher Good Morning - Sorry to asking the question again on my petition. My Approved petition expired on 2011 Oct.
    This petition never stamped and I never travelled to US. Can I apply for new petition on cap exempt. Please help me in answering my case.
     

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