Am I excempt from CAP

T

tweetybird26

New Member
1) I held a H1B until end of 2002 (I obtained this H1B under CAP for FY 2002). I used a little over a year of the H1B and left the country. I have been outside the U.S for over 2 years. I was initially told that since I was outside the US for over a year I am not exempt from FY 2008 cap and cannot continue the old H1B. I recently heard that the USCIS sent a memo stating that if I held a H1B in the last 6 years, regardless of whether I was out of America for over 2 years or not, I would be exempt from the CAP and can renew & continue the old H1B. Is this true? Please let me know ( I have always maintained status while within the US).

2) (a generic question for a friend) When H1B application is pending (under the 'port of entry' option and not under 'change of status' option) - can the person travel outside the United States before the I-797 is approved.

Thanks in advance!
 
For 1)

I got this information for one my similar posts ... I think you come under the part in Bold ... Hope it helps to clarify your doubt

This is actually law says(INA 214 (g) (7)).

(7) 2/ 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.
 
tweetybird26 said:
1) I held a H1B until end of 2002 (I obtained this H1B under CAP for FY 2002). I used a little over a year of the H1B and left the country. I have been outside the U.S for over 2 years. I was initially told that since I was outside the US for over a year I am not exempt from FY 2008 cap and cannot continue the old H1B. I recently heard that the USCIS sent a memo stating that if I held a H1B in the last 6 years, regardless of whether I was out of America for over 2 years or not, I would be exempt from the CAP and can renew & continue the old H1B. Is this true? Please let me know ( I have always maintained status while within the US).

2) (a generic question for a friend) When H1B application is pending (under the 'port of entry' option and not under 'change of status' option) - can the person travel outside the United States before the I-797 is approved.

Thanks in advance!
Click to expand...
1)
Here is the memo. You probably can choose to be subject to quota or exempt from it.
Read page 4 and 5 very carefully.
http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

2)
If you don't file through change of status, there shouldn't be a serious issue, however, if I were you, I try not to travel. When you file H1 petition, you have to disclose all the trip to the US on application. The travel after filing H1 petition ends up in not be disclosed.
 
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elephantsdream,

thanls so much. I think gotPR's reply provides the entire law.

gotPR,

thanks so much. my application has now been submitted for FY 2008 CAP. i was planning to use the'remainder' option as a back up. in case the CAP did not work out. i now believe that is possible.
 
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