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H1B transfer cap exempt or not ?

Springfield, IL |

I had a H1B visa from oct 2006 to sep 2009. I had been in US on H1B for 18 months till April 2009 Currently I am in US on L1B status and been here for 2 years .

Can a H1B be filed using my initial H1B expired petition under cap exempt category ?

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Attorney answers 3


No, absolutely not. To be considered "exempt" from the numerical cap on H-1B's when "transferring" from one employer to the next you HAVE to be in valid H-1B STATUS. You are not.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.



Will it be also be the same if the same employer files for the H1B under cap exempt ?


No, because you were counted more than 6 years ago.

NYC EXPERIENCED IMMIGRATION ATTORNEYS; email:; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.



I read on some blogs that the 6 years are counted from the date you last held the H1B status in US which in my case was till april 2009. As per your comment does it mean that the 6 years are started right from the date petition was approved ?

Alexander Joseph Segal

Alexander Joseph Segal


That information is wrong.


I agree with my colleagues. You are cap subject.

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