Is it legal to use H1-B recap option to get H1-B? 7 Answers as of February 03, 2012

I had H1-B from 1996-2001, I have to leave US on 2000. I have returned to US on B1 now. I want to get H1-B; Can I use the H1-B recap option to get H1-b? (Since I have one year more for completion of my H1-B)

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Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
You would be applying for a new H-1B, that is subject to the annual quota. You cannot recapture H-1B time from 10 -11 years ago. However, the advantage is that you would now get the entire 6 years of stay in H-1B status. The disadvantage is that you would fall under the quota, meaning the earliest you can have a petition filed on your behalf would be April 1, 2012, with a start date of employment of no earlier than October 1, 2012.
Answer Applies to: California
Replied: 2/3/2012
Law Offices of Brian D. Lerner, A PC
Law Offices of Brian D. Lerner, A PC | Brian David Lerner
It is not a matter of 'recap'. You left the U.S. for more than 1 year, and therefore, can apply for another H-1B when they are available.
Answer Applies to: California
Replied: 2/1/2012
Law Offices of Fariba Faiz | Fraiba Faiz
Yes, the prior H-1B which should be good for another 4 years can be used and it will not be counted against the cap.
Answer Applies to: California
Replied: 2/1/2012
Christian Schmidt, Attorney at Law
Christian Schmidt, Attorney at Law | Christian Schmidt
No, you will be subject to the annual visa cap. An employer can file an H-1B visa petition with an 10/1/2012 employment start date as of 4/1/2012.
Answer Applies to: California
Replied: 2/1/2012
Wildes & Weinberg, P.C. | Leon Wildes
If you were out of the USA for over a year, you may start over on a new cap period for 6 years, beginning 10/1/12, and you can file the H-1 petition on April 1st for work starting.
Answer Applies to: New York
Replied: 2/1/2012
Law Office of Christine Troy
Law Office of Christine Troy | Christine Troy
You may be able to do that since you would be recapturing the additional five years, as long as you were subject to a cap the first time around. It would take some time to review the most current memos on this subject so I recommend that you hire a competent immigration attorney to do this research for you.
Answer Applies to: California
Replied: 2/1/2012
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