Hi, I have unused H1B. My H1B was stamped in 2010 dec and got expired on 2012 dec. I never travelled on H1B. I came to US in 2014 on H4 visa and now I have H4 EAD. Can anyone please tell if still my old H1B can be filled under out of cap category or not.
Thanks in Advance
Under the 2017 I-140 Final Rule an employer may file a H1B cap exempt petition for a person who has H1B stamped in 2010 dec and got expired on 2012 dec. and never travelled to the US on H1B.
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My understanding is that The employer can file indeed, provided the beneficiary is seeking an extension/ recupture of unused portion of an H1B. Whether you are seeking an extension / recupture of that unused CaP subject petition depends on whether your H1B came into effect given you never worked for the original petitioning employer. USCIS relevant memo addressing this issue suggests it did not come into effect so the petition will not be seeking an extension/recupture.
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The important part would be to find an employer willing to file a cap exempt petition.
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