Recapturing time left on H1B after a gap of more than one year

[arpanbabi]

Hi,

 

My wife got her H1B approved for Company A against the CAP of 2007. She was in H1B till November 2010 and her position was terminated. Since then she is on F2 visa and is in India for the last 20 months. Can Company B still apply for a H1B transfer against the same CAP in June 2013 (she has around around 3 years left on that H1B)? Or does she has to apply against the CAP again in April 2014?

 

Any help would be much appreciated.

 

Best Regards,

[JoeF]

If she has been counted for the cap before and hasn't reached the full 6 years, a company can file a cap-exempt H1 for her.

If she has been out of the US for more than a year, she has a choice: either a cap-exempt H1 for the remainder time, or a new H1 under the cap for the full 6 years.

[arpanbabi]

JoeF, Thanks a lot for your reply.

 

I have a follow-up question. She had been counted against the cap in 2007 and used 3 years of H1. If she decides to go for the cap-exempt H1 for the remainder time, can the employer (a for-profit company) apply for the H1B visa anytime (like within June 2013 even though the cap is exhausted for this year)? Or, do they have to wait till April 2014?

 

I really appreciate all the help.

 

Thanks.