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H1B Visa extension denied in India - Got new employer - Resigned from original employer. How does it affect H1B premium petition.


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#1 rajMarch212011

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Posted 09 July 2011 - 01:32 AM

Dear All,

Could not find info in other forums so please reply or direct me to right place. Here is my situation.
H1B Extension 4th year with Employer A- Dec 2010
Travel to India and Visa Interview@Delhi - March 21, 2011. Have pay stubs till March 2011
Visa refusal - 26 April, 2011
Offer from new employer - June 22, 2011. LCA filed on July 1, 2011.
Sent formal resignation mail to Employer A - July 5, 2011.

Now my first question is that as I am in India is it going to be a H1B TRANSFER or fresh H1 Application. New employer has not asked for any pay stubs but did asked for old I797s and I-94s.
So does it mean that it is fresh H1 but they will show that I am cap counted and use remainder of 6 year period.

Second question is if my original employer decides to revoke/withdraw my petition based on my resignation letter how is it going to affect my H1B application (fresh or transfer) with new employer.

As per employer A process they will send me a Settlement Letter and my signature and return of same would confirm my resignation. Can they file for revocation/withdrawal before I send the signed Settlement letter because Technically my resignation will be confirmed once i agree to whatever is mentioned in Settlement letter.

Is there a way to know if my petition has been withdrawn or revoked on USCIS web site?

How long it takes for USCIS to withdraw/revoke petition once they receive letter from employer. Also does it cost anything to employer to revoke/withdraw?

As I am in India is it going to make any difference in the process of filing of new H1B/Transfer with new employer?

Thanks,
Raj

#2 TPP

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Posted 09 July 2011 - 03:57 AM

It is going to be H1B Transfer not a fresh application. In my view, your employer applied H1B with respect to previous h1b petition... so 100% it is going to be H1B Transfer.

I think, in your case to apply for fresh application you should stay out of usa for more than six months.
then only you are eligible for fresh and no need to mention previous petition details.

I hope this will help

#3 pontevecchio

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Posted 09 July 2011 - 04:16 AM

"H1B TRANSFER or fresh H1 Application."

A H1 transfer means a new non cap H1 petition has to be filed. So the question is redundant. Your new sponsor needs to get a H1 petitio0n approved and you would then get the visa and come over.

#4 rajMarch212011

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Posted 10 July 2011 - 01:58 AM

Thanks for clarifying. So if my old employer withdraws/revokes my current H1B(valid till Sep 2011) before or during the processing of my new petition is it going to affect the new application given that I am in India.
Apologies if my questions are too basic but I really appreciate your responses to clarify the legal stuff.

Thanks

#5 mehta.anand1

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Posted 10 July 2011 - 05:23 PM

Hi... I am in the same situation...
Had visa interview for 1st time stamping in Dec 10...

withdrawn the application in Feb 11....

New employer filing for H1B....

As I spoke with the immigration team, they told its going to be a fresh h1b application and the previous i797 approval period won't count towards it.....

[This message was edited by Admin on July 11, 2011 at 09:57 AM.]

#6 Orange221g

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Posted 10 July 2011 - 11:27 PM

when you are in India your employer should check the counselor processing mark in the application by doing so you wont need any previous paystubs /w2's then its going to be new application.

#7 tejalks

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Posted 11 July 2011 - 04:44 AM

As far as my knowledge goes, one cant do H1 Transfer while in India... So in ur case it will be only as a new H1B..

#8 rajMarch212011

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Posted 11 July 2011 - 04:50 AM

I have just one more question if you could please reply to it.
How is it going to affect my new petition application when I am in India if my old employer withdraws/revokes the petition before or during the process of my new petition?
Thanks

#9 pontevecchio

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Posted 11 July 2011 - 05:31 AM

Revocation of the H1 petition by the previous Employer has no meaning to you and does not take away your right to a total of 6 years in H1 status based on being cap counted once.

#10 rajMarch212011

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Posted 08 August 2011 - 03:10 PM

Hello friends,

So luckily with gods grace my H1B petition has been approved. Now I need to go for visa stamping which might end my almost 5 months long ordeal.

I have one question. As I have been in India for less than 6 months technically I can go to any consulate for visa interview. However I797 also mentions a 'Class Consulate' in the bottom tear off area. What is the significance of it? Do i have to go to the consulate mentioned in the I797 or it just implies that is the only consulate which was notified.

Please advice.

#11 rajMarch212011

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Posted 09 August 2011 - 02:36 PM

I applied for H1B visa renewal on march 21, 2011 and was later refused due to improper documentation.
My initial H1B visa was already expired on Sep 10, 2010 and it was stamped "Cancelled without prejudice".

Now as my petition is already approved I am filling out DS160 and not sure what to answer in:-

"Has your U.S. Visa ever been cancelled or revoked?"

Technically it was cancelled but not as in action against an offense.
Should i answer Yes and explain or is it safe to say No.

Senior members, JoeF, ppntevchio please advice.


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