H-1B visa - question about counted against cap

[tanu_75]

I'm a spouse of H-1B holder living in the US on a H4 visa since 2006. In 2008, an employer offered me a job and applied for a H-1b petition (without change of status, no I-94). I got the H-1B approval in April 2008, but due to family issues at that time, I did not take up the position and continued to stay on H4. Now, I want to work and am looking for a job. Given that I had an H-1B petition approved in 2008 (I have the approved petition and LCA documents) , if an employer offers me a job tomorrow and applies for a H-1b petition, will it be counted against the current quota or since I was already counted against the 2009 quota would it not. Please note that I was never in H-1b status even though I have an approved H-1B petition from 2008. I understand that there are still H-1B numbers available for the current year, but if they were to run out would I still be able to take up a job offer given the 2008 h-1b approved petition?

[kondur_007]

I'm a spouse of H-1B holder living in the US on a H4 visa since 2006. In 2008, an employer offered me a job and applied for a H-1b petition (without change of status, no I-94). I got the H-1B approval in April 2008, but due to family issues at that time, I did not take up the position and continued to stay on H4. Now, I want to work and am looking for a job. Given that I had an H-1B petition approved in 2008 (I have the approved petition and LCA documents) , if an employer offers me a job tomorrow and applies for a H-1b petition, will it be counted against the current quota or since I was already counted against the 2009 quota would it not. Please note that I was never in H-1b status even though I have an approved H-1B petition from 2008. I understand that there are still H-1B numbers available for the current year, but if they were to run out would I still be able to take up a job offer given the 2008 h-1b approved petition?

1. Since you are counted against the quota once (it happens when they approve your H1 petition and you do not need to be in H1 status or have visa or anything like that), you will not fall into "quota" this year; so even if the quota has to run out, you will be just fine. Just attach the copy of prior approval; you will not be counted against quota again.

2. chances of this year's quota running out any time before fall or even winter are very slim... so you will be fine any way.

good luck.

[tanu_75]

1. Since you are counted against the quota once (it happens when they approve your H1 petition and you do not need to be in H1 status or have visa or anything like that), you will not fall into "quota" this year; so even if the quota has to run out, you will be just fine. Just attach the copy of prior approval; you will not be counted against quota again.

2. chances of this year's quota running out any time before fall or even winter are very slim... so you will be fine any way.

good luck.

kondur_007, thank you for your response.

Would also much appreciate any comment from the attorneys here.