H1B - H4 - H1B( Future )

[rani1984]

I have question

Previously i was on H1B ( May 2010 ) . I lost my job when i came to india and had to withdraw my visa in June 2011 . I currently have a H4 visa but i am working in India .

My question is if i come to US in January (2012) and i manage to find a job in a comp which agrees to sponsor my H1b will i exempt from the cap ? I mean will i be able to start working once i get an H1B approval or would i have to wait for Oct.1

[kabkaba]

Your employer can file a cap-exempt petition if you have not spent 6 years in the US in H1 or L1 status. After change of status is approved you can start working.

[rani1984]

Thank you for the quick response.
I came to India in DEC 2010. When I go back in Jan 2012 it will be 1 year that I will be out of USA. Does that mean, the cap will apply and my start date will change?
I have not completed 6yrs yet.

[shervin143]

It depends on how the employer files your H1B petition. If they file it using the old CAP (from the previous H1B approval notice), then they can request an immediate start date and upon approval you can start working again. You will only get whatever time period that is remaining in that CAP. If you have already spent 2 year in the old H1B, then you will be left with only 4 more years of renewal. If the employer files the petition under a new CAP and if the quota remain open for fiscal year 2012, then also they can request an immediate start date. In this case, you will get 6 years in the new H1B CAP since you have already spent 1 year outside U.S. If the CAP for fiscal year 2012 is closed, and if you still want 6 years on a fresh H1B CAP, then you have to wait until April 2012 to file a petition whose start date can be only Oct 1st 2012 (for fiscal year 2013).

Thank you for the quick response.
I came to India in DEC 2010. When I go back in Jan 2012 it will be 1 year that I will be out of USA. Does that mean, the cap will apply and my start date will change?
I have not completed 6yrs yet.