H1B unused years

Asked over 1 year ago - Ether, NC

I have 3+ years of my H1B visa unused and I am interested to go for H1 transfer under CAP EXEMPT case.

Arrived in USA - May 2006
Left USA - March 2009
I-94 valid till - Nov 2009
From March 2009 to Till Date - Outside USA

I had my petition valid until 11/01/2009 but I had to leave US in March-2009 due to family issues. Now, I am interested to come back to US and work for the remaining period of my H1B visa i.e. around 3 yrs 2 months.

Question: Am I eligible to use my unused period in case an employer is ready to do H1 transfer? Or do I mandatorily have to file for new H1B under CAP SUBJECT for FY 2013-14 to enter US?

Thanks in advance!!!


Attorney answers (4)

  1. Carl Michael Shusterman


    Contributor Level 20


    Lawyers agree

    Answered . If you have a cap-exempt job offer, don't worry about the cap. Just have your employer file an H-1B petition on your behalf now.

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration... more
  2. F. J. Capriotti III

    Contributor Level 20


    Lawyers agree

    Answered . Mr. Segal is correct ... you need to look at the petition's approval date .... with that said, I suspect it was November 2006 ... putting you 'just barely' within the 6 year window.

    But, your 3 year departure has the potential for re-setting things.

    You need to meet with an attorney, with all your papers in-hand for a personal consultation and case evaluation. Many use Skype.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It... more
  3. Alexander Joseph Segal

    Contributor Level 20


    Lawyers agree

    Answered . H1B period remainder may only be claimed if the H1B petition was filed and subsequently approved, provided said approval took place within the last 6 years. When it the visa was actually used or employment started is not dispositive.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866)... more
  4. Robert Louis Brown


    Contributor Level 19


    Lawyer agrees

    Answered . Your absence of more than one year may require your to file under the 2014 cap. You should meet with an immigration attorney to go through the details of your application. if you are outside the US call or email an immigration attorney to discuss.


Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.


Ask now

22,014 answers this week

2,883 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

22,014 answers this week

2,883 attorneys answering