I had an H1B petition approved in 2009, but I never used it and never got an H1B visa stamp. Can I apply for an H1B position without going through the lottery?

Answer

This is not a yes or no question. We would argue that a person in this situation was counted against the cap, and therefore remains cap exempt. There are a number of technicalities here that the USCIS is raising more frequently than was the case in the past. For many years, cases like this were approved routinely. There is a higher risk of a challenge now, but it is generally worth trying in such situations. (02.May.2016)

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