Moving back to H-1B from H4 EAD

[jithsh1b]

Looking for expert opinion:

• My wife initially got through H1B lottery in 2013 while working on OPT but we relocated before Oct and she had to leave her job before Oct 2013.
• In 2014, she started working for a University through cap exempt H-1B until 2016 when we relocated again.
• In 2016 she started working on H4 EAD since my I-140 was approved during this period.
• Now that the H4 EAD is at risk, can she move back to H-1B based on the 2013 approval? Her current employer is not cap exempt.

Looking for inputs

[permaudit]

I think. She should have worked for the employer on H1 B to be cap-exempted.

[NotAnAttorney]

So she never worked on the cap-subject H1B that was approved in 2013?

[gotbeer]

I have the same question. If we never worked on the cap-subject H1B should we still go through the cap H1B process again (lottery etc.)? 

[Safi]

@jithsh1b if your wife hasn't worked in Cap subjected employer, then her new employer have to file new cap counted petition in lottery this year. If her petition is selected in lot she can start working to the new cap subjected employer from Oct 31st only.

[gotbeer]

2 hours ago, Safi said:

@jithsh1b if your wife hasn't worked in Cap subjected employer, then her new employer have to file new cap counted petition in lottery this year. If her petition is selected in lot she can start working to the new cap subjected employer from Oct 31st only.

@Safi Should go through lottery again even though the cap subject petition from 2013 was selected in the lottery?

[Safi]

@gotbeer Yes she has to go for lottery again as she didn't work for cap subjected employer's H1B. If she had worked under the cap petition for a month then she doesn't need to go for lot this year. As it would have just been like H1 transfer in 2013 for her.  Still I'm not an attorney, its better to consult a good attorney.