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H1B Cap Exemption

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  • H1B Cap Exemption

    My wife got her H1B first approved in 2004 and was in US for 10 months until April 2007. This was extended in 2007, but the extension was never stamped in passport. The extension expired in Jan 2010. She then applied for L2 and has been in US since July 2010, first under L2 and now under H4 (spouse moved from L1A to H1B). She now wants to start working again, hence would like to confirm if her H1B applied now will be cap-exempt. Most responses indicate that she will be, except one which said that previous H1B approval should not be more than 6 years old. Can you please confirm that a fresh H1B application would be cap-exempt? Another option is to apply under 2013 quota, but she would then need to wait until Oct 2012. If cap-exempt, how long would her new H1B be valid?

  • #2
    Usually a H1B CAP is valid only for 6 years. So I beleive she will need to go through a new CAP. Even if she uses the old CAP, she will only get the remaining period (6 - time spend in H1B status - time time spend in L1 status) in that CAP. If filed under a new CAP, she will get a fresh 6 year period.
    Not a legal advice. Use of this information is strictly at your own risk.