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I would like to know if my expired H1B petition is valid for cap-exempt renewal. At present I am with L1A visa.

Hartford, CT |

My fresh H1B petition was approved in Dec'03. I came to US with that for 2 months in 2004. Then I came again on Mar'05 with the same visa and stayed in US till Mar'08. In between, I had to extend the petition in Nov'06. My petition and visa expired on Mar'09.
I have now come to US again with L1A visa in Feb'11 and staying here since then.
I would like to know if I can switch employer now and if the new employer can extend my previous H1B in cap-exempt category. My home country is India.

Attorney Answers 4


  1. No.

    Your previous H-1B has long since expired and cannot be used to "cap exempt" you now, since you have not been "counted" against the cap at anytime during the last 3 years.

    All your prospective H-1B employer can do at this point is to file a. Rand new H-1B petition on your behalf on April 1, with an October 1 start date.

    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.


  2. To be cap-exempt you must have been in H-1B status within the last six years, and you would only be eligible for whatever remains of the six years maximum.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  3. I agree with my colleagues. The H1B Cap exemption applies only so long as you held an H1B visa status during the previous six years, and you have not exhausted the full six years.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.


  4. If switching employers is all you want right now, then take a look at the answers from the other immigration lawyers above. If, however, you have more long-term immigration goals, such as getting a green card, please know that the L-1A visa is a "gold mine" since it easily leads you to a green card, and your employer can petition for you RIGHT NOW (as opposed to the much longer processing times you would get if you tried to get a green card while on H-1B for another company).

    This answer is provided for general education purposes only and is not intended to provide, nor does it provide, any legal advice.   By viewing this answer you understand and expressly agree that there is no attorney-client relationship between you and the attorney who authored the answer.  Should you need legal advice, please contact a licensed attorney who practices in this area.  Readers of this answer and the information contained herein should not act upon any information contained in this answer without seeking legal counsel.

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