Immigration Issues/H1 cap validity


QUESTION: Hi, my wife had gone through the H1 CAP during 2008 lottery and not use it completely. She has more than 5 years remaining on that H1. Currently she is on H4, will it be possible to move back to H1B with out going through lottery again using the previous H1.


ANSWER: Hello,

As your wife did not fully use up her H1B time, she will be cap-exempt, thus avoiding lottery.

Best regards.

[an error occurred while processing this directive]---------- FOLLOW-UP ----------

QUESTION: Thank you so much for your quick response.
One quick follow up question: does the cap-exemp status is valid even after 6 years? As you know the first approval was on 2008 and it is over 6 years now

Thanks in advance


Your wife may not be cap exempt because her remainder time option is more than 6 years from the date her initial petition was approved. However, despite my advice, your wife can try to file under cap-exempt status. Indeed, USCIS sometimes approves a new H-1B as not subject to the cap although the H-1B time has an approval notice older than 6 years. This is due to the lack of clear guidance in this area and the ambiguity of the statute itself.

Best regards.  

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Hung Viet Can


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