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Subjected to H1B cap or not

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  • Subjected to H1B cap or not


    My wife is on H4 visa status and currently in the USA.

    She had H1B visa from 2007-2010 and never traveled to the USA on H1B.

    She attended series of interviews and finally got a job on November 22nd but the most unfortunate thing is H1B cap is full on the same day.

    I am just checking that since she had H1B from 2007-2010, is she subjected to H1B cap ?. Any form of kind help is highly appreciated.

  • #2
    If she previously had an H1B petition in which she has never used all 6 years, then she is already CAP counted and that CAP can be used to file a new H1B petition anytime. She will get the remaining period (6 years minus time spend in H1B + L1 status) as the new H1B period. Just give the employer a copy of the previous approval notice and they should be able to file a new petition on the old CAP.
    Not a legal advice. Use of this information is strictly at your own risk.