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