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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28187
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am searching online service that can guide me in applying

Customer Question

Customer: hi expert ***** ***** - i am searching for an online service that can guide me in applying for h1b i do not mind paying consultation if it comes to that
JA: Thanks. Can you give me any more details about your issue?
Customer: surely i was on H1 from Feb 2009 to May 2009 with employer A got a new H1B approved and stamped in 2013 from employer B i never travelled on this visa am i still cap exempt if i choose to apply for a new H1 now?
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Submitted: 10 months ago.
Category: Immigration Law
Expert:  Judith replied 10 months ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Yes, you are still cap exempt and entitled to use the remainder time of your 6 years excluding 2/2009 - 5/2009.

Your new petitioning employer may apply for your H1B petition for the initial maximum of 3 years and then seek extensions until you have completed the full 6 years.

I am unclear on what your question is regarding the process. Your employer must file the request for prevailing wage with the Dept of Labor.

They then must obtain the Labor Condition Application prior to filing the I-129 with USCIS.

You need to provide the evidence of your departure from the US in May 2009 with either your airline ticket and boarding pass or other official record of your entry into your home country and complete copy of your passport showing you have not entered the US using the H1B visa since departure.

Work records, your country tax records, also work.

You can also go online and get a print out of your your arrival/departure record from the CBP but that is not always accurate.

http://www.cbp.gov/newsroom/spotlights/2014-04-30-000000/arrivaldeparture-history-now-available-i-94-webpage

That is all you need to prove you are cap exempt,in addition to a copy of your old I-797.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Expert:  Expert James replied 10 months ago.
Edited by Moderator)
Expert:  Judith replied 10 months ago.
Edited by Moderator)
Customer: replied 10 months ago.
FOR JUDITH - Thanks for the reply Judith. I am concerned whether I am still cap exempt as there are many conflicting reports on the internet that a H1B needs to be activated before it can be considered cap exempt. In my case although my first H1B was activated between Feb 09 to May 09 - this was more than 6 years ago and the second approved H1B was never activated although it is current and falls within the last 6 years (new H1B was valid from Jan-2013 to Dec-2015). Can you please confirm if this is an assured 100% cap exempt scenario? - or do you think USCIS might scrutinize this case further? Thank you very much for your time on this matter.
Expert:  Judith replied 10 months ago.

Hi and happy new year!

I agree there is no set guidance policy USCIS has put in writing but I can tell you that in practice they have been approving H1B petitions that have not been used because if the employer did not revoke them before 10/01 that cap number was considered used and counted towards the 65K or 20K count. therefore they are giving you the advantage of using it.

Now one warning I will give you and this I have held for 35 years. If any immigration attorney gives you a 100% guarantee they are lying to you! USCIS has discretion and up to this point I have found them to exercise favorable discretion in my H1b cap cases where the petition was never used.

You have nothing to loose and everything to gain by trying. I strongly suspect you will be approved.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

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