H1B Visa approved in 2008, Can i file for cap exempt petition now?

[kumar_ch (kumar b)]

Hello

I have an approved H1b petition from 2008 (validity from 2008 to 2011) .
I do not have H1B stamping in passport, I came back to India in 2009 and now i am planning to reuse approved petition from 2008. Please help me in right direction as some are saying the petition is valid and others say it is not valid now.

Please suggest me what i can do to recover my remaining duration of H1B approved in 2008.

Thanks
Kumar

[Anil_Gupta]

Hi @kumar_ch

This is an interesting question and unfortunately has no concrete answer from USCIS.
But, DHS has clarified in its Nov 2016 policy update that H1B time cab be re-captured anytime until you use your 6 year available time.

So, you are allowed to file your H1B cap-exempt application at any time now to recapture the un-un-used time from 2008 cap-subjected H1B application.

This has been reflected in Murthy.com’s official answers here to same questions too:

1. I worked for 1 year in H1B status, and then went back to my home country in 2001. Can an employer file a cap-exempt H1B now to reclaim the remaining 5 years? - Murthy Law Firm | U.S Immigration Law

2. I was in H1B for a couple of years and then left in 2009. Can I file a cap-exempt H1B to claim remaining years now? - Murthy Law Firm | U.S Immigration Law

I updated the answer with more concrete facts and DHS official guidance link.

Does it help?
Let me know if you need more information.