H1B - Cap or Cap-exempt

[pramod]

Hello All,

I am trying to get clarity on my bro's H1B, here are the details:
Approved H1B in 2013 (2013-14 cap), was outside US, never entered into USA on H1B. He entered on F1 visa (Spring 2014) and planning to graduate in May 2015. So the question is, when he finds an employer who can apply for his H1B, will that be "cap" or "cap-exempt" one?

Please comment if you can, appreciate your time.

Thank you

[qesehmk]

Hello All,

I am trying to get clarity on my bro's H1B, here are the details:
Approved H1B in 2013 (2013-14 cap), was outside US, never entered into USA on H1B. He entered on F1 visa (Spring 2014) and planning to graduate in May 2015. So the question is, when he finds an employer who can apply for his H1B, will that be "cap" or "cap-exempt" one?

Please comment if you can, appreciate your time.

Thank you

Looks like nobody answered this. I can try but I am not 100% confident of my answer.

If the said H1 was utilized even for a day - the person could use the remaining time without being asked to get a new H1.

However since the H1 was not utilized at all - I am not sure if it can be recaptured at all. Spec / Kanmani might know better. You may want to ping them.

[Spectator]

Looks like nobody answered this. I can try but I am not 100% confident of my answer.

If the said H1 was utilized even for a day - the person could use the remaining time without being asked to get a new H1.

However since the H1 was not utilized at all - I am not sure if it can be recaptured at all. Spec / Kanmani might know better. You may want to ping them.

Q,

I concur with your view.

My reasoning is due to the wording of INA 214(g)(7) :

(7) Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

If the person has never been admitted into the USA in H1B status, then the full 6 years would be available for any future petition filed for them.

Thus, they would fall under the exception above and the new H1B petition would have to be filed under the Cap.

If the employer notified USCIS that the H1B petition was not used (as they are required to do so) it is automatically revoked by USCIS and the number allocated to another applicant 8CFR 214.2(h)(8)(ii)(C).

(C) When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year.

8CFR 214.2(h)(11)(ii)

(ii) Immediate and automatic revocation.

The approval of any petition is immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal of the petition, or the Department of Labor revokes the labor certification upon which the petition is based.

In that case, it would be as if the approval never happened and a future H1B would have to be applied for under the Cap anyway.

[qesehmk]

Q,
I concur with your view.

My reasoning is due to the wording of INA 214(g)(7) :

Thanks Spec.

[pramod]

Thank you both!