The maximum time that a person can be in H1B status is six years.
Originally Posted by SaibabaAug2010
If your wife has already completed 6 years in H1B status, then there are 3 ways she can return to H1B.
a) If she has a PERM that was filed at least 365 days before the new H1B start date then she is exempt from the 6 year limit under AC21 and could get an H1B approval for 1 year. The PERM can be Pending or Approved or in Appeal, but a Denied PERM does not count.
b) If she has an approved I-140 and her PD is not Current, then she is exempt from the 6 year maximum under AC21 she would be eligible for an H1B approval for up to 3 years.
c) If she spends 365 days outside the USA, she would "reset the 6 year clock" and be eligible for a further 6 years in H1B status. Any application would be under the cap and USCIS may not approve a case until the 365 days outside have been served. Brief trips to the USA do not interrupt the 365 days, but the days in the USA do not count towards the 365 days. Since the H1B application will need proof of the 365 days spent outside the USA, my understanding is that a company cannot apply until the 365 days have actually been served. Depending on timing, that might mean waiting until the next cap season, since yearly H1B allocations are generally used quite quickly.
From your post, it doesn't sound as if she meets the conditions of either (a) or (b).
If she has been in H4 status, then she must be in the USA and will not, or cannot, have been outside the USA for the required time to "reset the clock" when the FY2014 H1B season starts in April 2013.
If she has exhausted her 6 year limit, I don't see how she is going to get a new H1B approval based on the information in your post.
I hope I have understood the situation correctly.
Last edited by Spectator; 11-10-2012 at 09:09 PM.
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