H1B processing with old expired I797- Could you please clarify?

My wife is in India with H4 visa stamped.

She had H1B from 10/01/2006 to 09/30/2009. But she did not travel to USA with that H1B at that time. Now, we are planning to apply for H1B.


We have below questions, could you please clarify?

1. Can we apply for new H1B using her old H1B application EAC number?

2. Suppose if we apply for new H1B using an old H1B, will she come under this year Quota?


3. Which one is the best? (Applying for new fresh H1B (H4 to H1 conversion) OR Applying for new H1B using old H1B petition number? 

4. Suppose if we apply for new H1B (not H4 to H1B conversion) in this April when she is in India. And if we get H1B approved, can she travel to USA with current H4 visa and work on new H1B?


5. Suppose if we apply for new H1B using an old H1B EAC number, Can we apply for H1B at any time? 

6. I heard, we can apply for new H1B now and after approval she can travel on current H4 visa from India and after she comes here, we have to change the status from H4 to H1 to work. Can this be done? Please clarify.


  1. A person is eligible for H-1 cap-exempt if their H-1 was approved in past 6 years. In her case, it was little more than 6 years. So she should check w/ an attorney if she is still eligible for cap-exempt H-1 or if she has to go through the cap again.

  2. If she is eligible for cap-exempt then she can use old petition as reference and will not be subject to cap.

  3. The options are: file H-1 from outside US (either through new cap or cap-exempt using old petition) or file H-1 from inside US along w/ COS from H-4 to H-1 (either through new cap or cap-exempt using old petition). Chances of approval don’t vary much and depends upon the submitted documents and information.

  4. She can travel on H-4 to US and then apply for COS from H-4 to H-1 on her approved petition.

  5. If she is cap-exempt, then it can be applied anytime and not subject to April filing date.

  6. Yes, see #4

Thank you Saurabh for clarifications. Could you please let me know the cost of COS from H-4 to H1 after she come here?

I am not sure but it might be something like 200-300 USD. You can check for the cost for form I-539 on USCIS website.