Not if you haven't yet spent 6 full years physically in the US in H1B status.
A current H1B holder can transfer to another employer within the US during the six-year H1B period without being subject to the lottery cap again. But what happens when an H1B holder leaves the US after working on an H1B and then later receives another job offer in the US. Is this person subject to the cap if their new employer wants to sponsor them for an H1B?
The answer depends how long the H1B holder worked on the H1B before leaving. A person granted H1B status may work in that status for a maximum of six years. After working for a solid six years, the H1B holder must remain outside of the US for a full year before being able to apply for another H1B for a fresh six years. When she does reapply, she will be subject to the cap.
On the other hand, a person who had an H1B but worked for fewer than six years may be able to file a new petition without being subject to the cap, even if she has subsequently lived outside of the US for an extended period of time.
You can determine whether or not you have used up your 6 years by adding up all the time you spent both 1) physically in the US and 2) in H1B status.
The 6-year clock stops any time you physically leave the US or switch to a different status.
- If you spent 5 years working in the US on an H1B, but went to India for one month of vacation every year during that period, your calculation is 5 years - 5 months = 4 years 7 months of H1B status used. This means you could work for a new employer for up to 1 year and 5 months without being subject to the cap, no matter how long you have spent outside of the US since you abandoned your original H1B status.
- For instance, if you worked in the US in H1B status for 2 years straight and then returned to your home country for 2 years, 6 years, 10 years, etc., you would still be eligible to file a cap-exempt H1B with the same employer or a new employer for up to another 4 years without being subject to the cap.
- If you worked in the US for H1B status for 2 years and then changed to F1 status to pursue a master's degree followed by OPT, you will still have 4 years of H1B status left to use without needing to go through the lottery again when your OPT runs out.
- I worked on the H1B for a full 6 years: A person in this situation must leave the US and stay abroad for a full year before reapplying for a new H1B. When she does reapply, she will be subject to the cap and eligible for another full six years.
- I previously worked on the H1B for under 6 years and have been back in my home country for less than a year: A person in this situation will be exempt from the cap. She may file a new petition at any time during the year, and may do so without first returning to the US. She will only be eligible for the remainder of time left from her original six-year period, however.
- I previously worked on the H1B for under 6 years and have been out of the US for more than one year: A person in this situation has two options. She can file a cap-exempt petition at any time. If she chooses this option, however, she will only be eligible to receive the remainder of the time left over from the initial period. The second option is to enter the lottery, which has the advantage of making her eligible for a fresh six-year period. If she's not selected in the lottery, she has the backup option of filing an application to reclaim the unused time from her original H1B at any point.
As always, it is impossible to cover all of the nuances of cap-exempt H1B petitions in a single blog post, and you should not attempt to file a cap-exempt petition without consulting an attorney for an analysis of your specific situation. If you would like to discuss your situation in detail, feel free to send us a message, or schedule a consultation.