H1B Cap Exempt or Not...

[ctmask111]

Hi All

My spouse worked for a software company in India prior to our marriage. That company filed a H1B and her application was approved and stamped in 2003. But she never used that visa to come to the USA.

Later in 2004 we got married (i was already on H-1) and she came to US on a H4 visa. during her h4 visa process her H1B visa in the passport was cancelled. She also resigned from the software company.

Now she wants to start working again. She is still on H4 visa. Now if we apply for a H1B, is she subjected to cap.

Please suggest. Thanks

[omshiv]

She is NOT Cap Exempt. She has to try next year.

[0407]

Talk to an attorney. She might be exempt. Search for

"Guidance on Determining Periods of Admission for Aliens Previously in H-4 or L-2 Status; Aliens Applying for Additional Periods of Admission beyond the H-1B Six Year"

You will get

Interoffice Memorandum - uscis

[pontevecchio]

@OP, Your wife should talk to a Lawyer first. Once capped one remains capped for eternity and able to make use of the total of 6 years in H1 status assuming she finds a H1 sponsor.