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H1B cap exempt?

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Hi all,


My wife got her H1B in 2012 under cap. We moved to India in 2013 and have been here since. Now we plan to move back.


Will she be cap exempt if her previous company sponsors her H1 again, considering she was out of the country for more than a year. Any inputs will be helpful. Thanks.

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The cap exemption is available, since she was counted against the cap. She could claim the remainder of the time from the six year H1 period. That is, she could claim whatever time was not used from the initial six year period.


A person who has been out of the US for a year can file for the full six year H1 period, but those cases are cap subject. You have the choice between cap exempt for the unused time or filing a cap case. It is easy to see which one is better in this situation.

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Could you please clarify my below query ?



I'm in India presently and had my H1B petition approved through Employer A(US Consultancy) in 2014.  I never got the visa stamped and never joined employer A. I am still in India and working with the same indian employer 


My query :


1. Let's say If my employer A (US Consultancy)  withdraws /cancels my h1b petition  then 

a. Can  my present Indian employer file  new cap-exempt petition now for me based on the above approved case? 


b. Am I eligible for Cap exempt for next 6 years since mine is approved case which is never used nor expired yet ? 


c. I do not have the hard copy or scanned copy of approved I797A. My employer has shared complete picture of I797A  where  bottom half of the document is clear and not the top one. Case number is clearly visible . Is that enough for the transfer ?


2. Is USCIS doing H1B transfer in "Premium Processing" now? my I797A validity: Oct-2014-Sep 2016.


I researched many topics and forums, and some people say "yes", some "no". not sure what is correct ?


Any advise appreciated.




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