H1B Cap

[Attorney_22]

This week, the Murthy Law Firm attorneys will answer questions relating to the H1B Cap.

 

With an expectation of significant volume this coming April 2016, it is never too early to start preparing.

 

Rules for Topic of the Week Threads:

 

 1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

 

 2. The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

 

 3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

 

 4. Please do not provide information which would identify any specific company, university or individual. 

[firsthalf]

Hi Attorney's,

 

Hope you are doing good!! I have a query regarding H1 CAP, like I am going to complete my masters in Aug-2016. currently I am on a project with CPT status and i would like to file H1 in April-2016, I just want to know do my profile eligible for Masters CAP/quota. If at all my H1 got picked anyways it is valid from October-2016.

 

Awaiting for your valuable suggestion.

 

Thanks in Advance!!!

[Attorney_22]

Hi Attorney's,

 

Hope you are doing good!! I have a query regarding H1 CAP, like I am going to complete my masters in Aug-2016. currently I am on a project with CPT status and i would like to file H1 in April-2016, I just want to know do my profile eligible for Masters CAP/quota. If at all my H1 got picked anyways it is valid from October-2016.

 

Awaiting for your valuable suggestion.

 

Thanks in Advance!!!

You must be eligible for the category at the time of the request. Therefore, if you have not completed all requirements for the degree by the time the H1B petition is filed, you will be unable to apply in the Master's Cap based on that degree. Feel free to call our office to discuss this in more detail. 

[JoeF]

Hi Attorney's,

 

Hope you are doing good!! I have a query regarding H1 CAP, like I am going to complete my masters in Aug-2016. currently I am on a project with CPT status and i would like to file H1 in April-2016, I just want to know do my profile eligible for Masters CAP/quota. If at all my H1 got picked anyways it is valid from October-2016.

 

Awaiting for your valuable suggestion.

 

Thanks in Advance!!!

 

Note that the CPT could also be a problem. Legitimate CPT is very rare, and in general, CPT is noeadays a big red flag for USCIS.

So, you better be able to show that this is legitimate.

[sahasra051813]

Hello and hope you are doing well! I have a query regarding H1 B. I lived in USA on L1B from 12/2008 to 12/2010 and on H1B from 01/2011 to 11/2014. After completing 6 years (L1B + H1B), I voluntarily left USA end of 2014 and stayed in India since then. Now that I have completed my 1 year stay outside USA, would I be eligible to apply for H1B outside the cap, to claim the remaining 2 years left on my H1B ? Please advise.

 

Thanks in Advance.

[nayanamistri]

Hello,

I am on L1 visa with Company A and my PERM Labour Certification is filed recently (and in process). Can I process my H1B with Company B? Is that possible?

Thanks in advance

[Varun9808]

Hi, I am currently in H4 visa status here. I had an H1B earlier which i got it stamped on Feb 2012 from India.But i didn't travel to US using this H1B and never used it. it got expired on Feb 2013. I would like to know whether I can go for H1B cap exemption with a new employer or is it necessary that I should travel at least once with that H1B to get eligible for cap exemption.Please provide your valuable suggestion

[DeeptiRBhatia]

Hi, I am currently on H4 visa status here. I had an H1B earlier in April 2008 and I went for stamping in Nov 2010 from India from where it went in Administrative Processing. I did not follow up later on same and so it was never used. On petition it says valid through 25Sept 2011. 

 

I would like to know whether I can go for H1B cap exemption with a new employer.Please provide your valuable suggestion.Currently I reside in US.

[manua]

I have a query, my H1B petition was approved and valid from Sep 2013 till Sep 2015. I was in some other country during whole of the duration hence never travelled either for stamping or to work in USA.

 

Can my approved petition is transferable and some other company can do the same without the knowledge of the company. Till how many years I can still opt for Out of Cap H1B travel if I want to travel through my current company.

[Attorney_22]

I have a query, my H1B petition was approved and valid from Sep 2013 till Sep 2015. I was in some other country during whole of the duration hence never travelled either for stamping or to work in USA.

 

Can my approved petition is transferable and some other company can do the same without the knowledge of the company. Till how many years I can still opt for Out of Cap H1B travel if I want to travel through my current company.

In practice this is a gray area. For H1B cap cases USCIS may not consider you counted against the cap since you did not obtain a visa or an I-94 based on the approved petition. In practice we have seen mixed results for similar situations.

[Attorney_22]

Hello and hope you are doing well! I have a query regarding H1 B. I lived in USA on L1B from 12/2008 to 12/2010 and on H1B from 01/2011 to 11/2014. After completing 6 years (L1B + H1B), I voluntarily left USA end of 2014 and stayed in India since then. Now that I have completed my 1 year stay outside USA, would I be eligible to apply for H1B outside the cap, to claim the remaining 2 years left on my H1B ? Please advise.

 

Thanks in Advance.

Based on the information above, it appears you may only have approximately two months left of the H1B's six years. Generally you can either file an H1B recapturing the remaining time, or since you have been out of the U.S. for over a year, you are eligible for a new period of H1B time with the filing of a cap case (unless you are working for a cap-exempt employer). 

[Naraya]

Hi ,

I have gone through related question in the forum,but didnt find the answers for few of the below questions.

My H1b  visa got stamped in India  from company A(cmm level company) in Dec 2008 and valid upto  Sept 2011.I have not travelled to US ever.

I am currently working in INDIA for company B.I would be travelling to US on H1b,

Can I apply a new h1b or do I fall under cap quota?


Awaiting for your valuable suggestion pls.


Thanks in Advance!!!

[Attorney_22]

In practice we are seeing USCIS usually deny H1B petitions filed as cap-exempt for circumstances similar to those above. 

[ivrs11]

The person stayed in USA for 3 years on H1 B(2008-11) with  Employer A resigned and left to India.

 

Employer A revoked the petition.  Joined with Employer B in India.

 

After 5 years (2016) want to apply for H1 B through Employer C.

 

Now whether it is H1 B cap-exempt or H1 cap ?

 

-Thanks 

[maryreddy]

I am Mary I got H1B approval 2007 August. I got it stamped on passport from India on April 2008.

 

I came to USA on May 15 2008. I returned to India on June 2009. 

 

I applied employer transfer.. Here are my H1b transfer details

 

04-21-2009 to 07-14-2011 case number eac08202526.

 

Again I came to USA on March 2010. 

 

I applied change of status f1 on 2011 April. When it is on process I returned to India on July 2012.

 

I received denial letter when I am in India. 

 

Now my question is can I recapture my H1B . Please advise me.

 

i am in india. 

[aks2679]

Hi Murthy Firm, First of all you are doing wonderful job, Thanks for that. I am new member and this is my first post.

 

I am in USA on H1B since April 2015 with Company A. In October 2015, my comapny 'A' filed H1 amendment for new location transfer. i had planned to move in 1st week March, so last of Feb 2016 i asked about the Amendment status from my company. Company shared the receipt no. and asked me to check with USCIS website.When i check i saw following :---

 

"On January 15, 2016, we received your request to withdraw your Form I-129, Petition for a Nonimmigrant Worker, Receipt Number WACXXXXXXX, and completed our review. We mailed you a Withdrawal Acknowledgment Notice. If you do not receive your Withdrawal Acknowledgment Notice by February 14, 2016, please go to www.uscis.gov/e-request to request a copy of the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address."

 

Now My company is saying they have not filed any application other than Amendment in October. And it is due to some issue with USCIS, and they are working with USCIS people, but it will take time (months) to resolve and asked me not to travel India till issue gets resolved.  I also checked at website with my original recipt of H1, it is still in approved status. Only issue i get when i see the Amendement receipt. My I-94 is valid till late 2017.

 

Now i have got offer from a reputed company but they want to join me in 1 month.

I have following Queries

Will my H1 transfer be denied in this case. ?

Can i get solution to this issue if i go for Premium processing for filed H1 amendement before transfer ?

[madhugs]

I would like to know my H1B validity for renew or transfer, please help me out and clarify the below queries.

 

1. H1b stamping was done in Dec 2008 and the expiry date is July 2011, I never traveled on H1B to US, but I was there for 2 months on B1 visa. Is the visa still valid for renewal/transfer?

2. Dont have the petition copy I797 which I returned over to Prev employer. But have thee petition number on the stamping copy which is sufficient for renewal or transfer?

3. B1 visa processing time, they stamped on my H1 like 'Cancelled Without Prejudice'. Does it create any issue.

4. I changed my last name recently in passport which is not the same of my previous stampings on H1 or B1. 

 

Can you please suggest me the right way, whether you suggest me to go for new filing under this year quota or is it possible to transfer any how the existed one.

 

Appreciate for your help.

 

[4u.prem.sagar]

Hi Team,

 

I got my H1B petition approved in 2008 and was never used(not stamped) and it expired on September 17 2011. Now my question is Can I still use the same petition with new employer under CAP exemption for a H1B transfer.

 

Thanks and regards,

Sagar

 

 

 

 

[4u.prem.sagar]

Hi Attorneys,

 

I got my H1B petition approved in 2008 and was never used(not stamped) and it expired on September 17 2011. Now my question is Can I still use the same petition with new employer under CAP exemption for a H1B transfer.

[shri568]

Hi,

 

I have critical situation. Currently I am on 17 month OPT Extension period, I got a full time opportunity but it starts after April 10th 2016. Here is the tricky part, The current employer where I am working as a contractor with him is going to apply H1B this April 1st 2016. If after applying my H1B i.e after April 1st 2016 I join as full time and I will update my employment to USICS that current employer is Full time Employer.

 

Now I don't want to loose the opportunity of filing H1B and loose the opportunity of Full Time. I am in a big confusion which one to chose.

 

Please kindly help me with this situation what would be best way to go.

 

please kindly help in giving best solutions.

 

Thank you

[kris12346]

Hello Murthy,

 

We need your suggestion on this. By mistake we have sent the H1 file to Vermont Premium processing center instead of California Premium Processing center. What should we do now. Please do guide us on this regards.

 

Thanks,

Kris

[JoeF]

Hello Murthy,

 

We need your suggestion on this. By mistake we have sent the H1 file to Vermont Premium processing center instead of California Premium Processing center. What should we do now. Please do guide us on this regards.

 

Thanks,

Kris

 

What do you mean with "we have sent"?

The employer or his lawyer sends the petition to USCIS. You aren't even involved in that.

[NYWarrior]

Hi Attorneys,

 

My wife Came here in 2015 on H4, Continuing in same status. This year one employer has filed H1b-2017 on 1st April in Regular Processing. I have couple of Questions.

 

1) She would need to travel to india sometime in June'16 [ family related, came to know 2 days ]. Does this effect her h1b if it gets thru lottery? and when can come back?

 

2) myself I'm on h1b with company A and wanted to move to new company B. Does this effect her H1b?

[Syamsundar81]

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4u.prem.sagar's Photo4u.prem.sagar

11 Mar 2016

Hi Team,

I got my H1B petition approved in 2008 and was never used(not stamped) and it expired on September 2011. Now my question is Can I still use the same petition with new employer?

[Attorney_22]

Hi Attorneys,

 

My wife Came here in 2015 on H4, Continuing in same status. This year one employer has filed H1b-2017 on 1st April in Regular Processing. I have couple of Questions.

 

1) She would need to travel to india sometime in June'16 [ family related, came to know 2 days ]. Does this effect her h1b if it gets thru lottery? and when can come back?

 

2) myself I'm on h1b with company A and wanted to move to new company B. Does this effect her H1b?

Generally, if a change of status is pending and the subject of the application/petition departs the U.S., the change of status will be abandoned. If this occurs your wife will need to obtain an H1B visa and re-enter the U.S. to initiate the H1B status. Your change to a new employer would not affect your wife's H1B provided she maintains valid H4 status during your transition.