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I have previously worked on an H1B visa, then left the United States. If I have a new job offer, do I need to go through the H1B “cap lottery” again?

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No. The good news is you are exempt from the H1B “cap” for a new job offer if you have already been counted in an H1B cap lottery within the past 6 years. This is true even if you have left the United States after your first H1B employment has terminated.

Being subject to the H1B “cap” entails substantial restrictions on the timing of when the work arrangement can start and a high probability that the application cannot go forward if the case is not selected in the annual lottery.  Being exempt from this cap opens up a wider variety of work opportunities and gives more certainty and ease to the process.

This means that in cases where a worker formerly on an H1B visa has left the United States after the initial employment terminated before exhausting the 6-year period given, and receives a new job offer from a new employer within this period, the new employer can file an I-129 petition to USCIS at any time, since there is no need to go through the lottery again. Once that petition is approved, the applicant can take this approval to their home country’s consulate to apply for a new H1B visa. It is important to note that in this case, the worker will be allowed to be on H1B status only for the remainder of the initial 6 years given.

Applicants with an approved I-140

Applicants with an approved I-140 who are subject to the benefits given by the American Competitiveness in the 21st Century Act (AC21) are exempt from the 6-year limit on H1B status and can extend their stay indefinitely until the priority date is reached for their immigrant visa category.

In such cases, workers formerly on H1B status will continue to be exempt from going through the lottery again after they have left the United States, such that a new employer with a new job offer can submit an I-129 petition on behalf of them at any time, supporting the issuance of a new H1B visa.

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