Immigration Issues/H1 cap validity

Advertisement


Question
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.

Thanks
IK

ANSWER: Hello,

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

Best regards.

---------- 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
IK

Answer
Hello,

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.  

Immigration Issues

All Answers


Answers by Expert:


Ask Experts

Volunteer


Hung Viet Can

Expertise

I can answer nearly all questions concerning Canada and U.S. immigration.

Experience

I have worked for more than 20 years in the field of Canadian immigration and more than 7 years in the field of U.S. immigration.

Education/Credentials
Attestation of Collegial Studies in Immigration Consultant

©2016 About.com. All rights reserved.