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H1B unused years

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!!!


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Attorney answers 4


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; 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.


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 experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


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 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.



Thanks for your reply. You are right. In November 2006, petition was approved. So, I have already missed the 6-year window then and therefore H1B transfer may not be possible. Only way to come back to USA will be on fresh H1B visa quota that will open soon in April 2013. "But, your 3 year departure has the potential for re-setting things." - Does this apply for H1B transfer under cap-exempt or for new H1B under cap-subject for FY2013-14?

F. J. Capriotti III

F. J. Capriotti III


We are now at the point where you should consider a private consultation with an immigration attorney ... this is going beyond the usable scope of an Internet Blog.


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.


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