I have been approved H1b in November 2013 and got it stamped. But I haven't traveled on h1 status at all. In Jan 2016 I have been in USA on F1 and completed my degree and currently on OPT with a full time job. Can my current employer apply Cap-exempt h1b on the one approved in November 2013 now?? If so when would be the deadline to make use of it. And do I get the whole 6 years back (say from 2018 -
2024) as I didn't use any of the approved H1b. Please clarify me on this.
Employer gets to elect the category of filing. If they are advised to file as a cap subject petition, they will file only for the next fiscal year.
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First of all, you weren't approved for H-1B .. .the company that filed the papers 'owns' the papers.
Second, you don't appear to be cap-exempt, should a new employer wish to file for you ... due to the fact that the 2013 H was never activated.
Talk to the company's lawyer ... some are brave enough to try claiming cap-exemption.
PROFESSOR OF IMMIGRATION LAW for 10+ years -- All responses on this blog are 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.
Your employer’s immigration lawyer is available to address your concerns.
Nonetheless, you do not seem to be cap-exempt as the H-1B was never activated.
There is a fairly high likelihood that an H1B petition filed now by an employer will be exempt from the visa cap although you were never in H1B status. On the other hand, the basis for eligibility is more than just an I-797 (you took the subsequent step of obtaining an H1B visa).
Therefore, an H1B petition requesting exemption from the cap and including a copy of the earlier I-797 plus copy of the visa page in passport may be approved by the USCIS as a cap-exempt H1B petition. The employer will decide how to proceed, hopefully through a discussion of the advantages/disadvantages with an experienced immigration lawyer.
The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter, nor should it be viewed as establishing an attorney client relationship of any kind.
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