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Do i need new h1b petition (that will be suject to cap) or i can recapture time left on my old h1b?

San Jose, CA |

My background: I came to US on h1b in Nov 2008. I didnot work for that employer at all. Changed my status to h4 on April 2009. On March 2011 changed my status to f1. Now starting April 2013, i willl be on OPT till april 2014. I would like to know if an employer is willing to hire me, does he need to apply for new h1b that will be subject to cap or i can use my 5 and half years left on my old h1b? Please let me know.

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Attorney answers 3


From your statement, you appear to have violated your status between November 2008 and April 2009.

You should meet in private with an immigration attorney before filing any more papers.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.


I agree with my colleague. Seek a consultation with a competent immigration attorney before any petition is filed in your behalf.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 to schedule a consultation.


Representing yourself without adequate legal experience or knowledge can prove to be a challenge. It may not be possible to learn every law or detail. Often times the more complex a case is, the more legal knowledge a person needs in order to be successful. A lack of time, resources, and knowledge can be negative points of self-representation. It's better to hire a lawyer to handle this. There are a lot of excellent lawyers in your city.

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