Can someone explain what my wifes visa situation is?

[schumi_69]

Wife has an H1B petition that was approved in 2008 that is valid till Sept 2011. She could not find a job at that time so she came to the US on a H4 visa as my dependent.

She got a job offer last year, but her Change of Status (CoS)/Amendment from H4 to H1 was denied because we were unable to submit the end client letter. We did not appeal the denial. So she never worked or used her H1 petition and continued her stay on H4.

Questions:

1) If my wife gets an offer from a NEW employer (who agrees to sponsor her H1), does she have to wait till October to start working, or since she has been counted against the cap once, does it hold good forever? How will this situation change after Sept 2011 when her existing H1B petion expires?

2) If her existing employer finds her a job and this time we have all the documents, including the client letter, are her chances of H1B denial high since it has been denied once through her existing employer already?

Can someone please reply to my queries asap?

[pontevecchio]

1. She has been cap counted. If a sponsor files her H1 petition and gets it approved either with COS or for CP she can work on approval or after coming back on the H1 visa. She is potentially entitled to a total of 6 years in H1 status.

2. If her documentation is allright she has the same chance of getting the H1 petition approved. Having said this it is prudent to get another sponsor. I also point out that almost all the expenses are the responsibility of the H1 sponsor.

[schumi_69]

Thanks for your reply. In regards to your first comment, I found the following info on the USCIS website

"Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once."

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/periodsofadm120506.pdf

See page 8, section (14).

I am having a hard time understanding what the above statements mean exactly.

Theoretically her new H1 should allow her a full 6 year eligibility because she has never worked on H1 before. Does that mean she will need to be counted against the cap based on the above paragraph?

Also what does this sentence mean exactly? - "Where multiple petitions are approved for 1 alien, that alien shall be counted only once."

Does it mean if my wife finds a new job and uses her existing petition she will have to be counted against the cap again. But if she finds a new employer (hence new/multiple petition) she will not be counted against the cap?

The language in the USCIS memorandum is confusing. If you can explain how it applies to my wife's situation, I will appreciate it.

TIA!