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yashvirs

Filing cap exempt H1b using unused I-797B Approval Notice

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Hi, I have an unused I-797B Approval Notice that was issued in 2013. The validity was from 10/1/23 to 8/23/2016. The notice was issued when I was working for company A in India. That said, I never got my H1B stamped and left company A to join company B (in India). Company B applied for my L1A, and I entered US in July, 2015 on the L1A visa. In 2017, I left company B to study MBA at a renowned US university. My visa status changed from L1A to F1. As I was about to complete my MBA in 2018, I applied for an OPT. The OPT ended on June 29, 2019. I am currently working for a tech company at San Jose. Since the OPT has ended, I am going back to India through the intra-company transfer process. My question is whether my current employer can use the old I-797B to file a new Cap-Exempt H1B petition. What are the chances of an RFE as my H1B status was never activated? I know that there can be multiple other reasons for the issuance of RFE, but can it be issued to me just because I never entered US on H1B. My I -797B has still not been revoked by my previous employer.

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Hi, can someone please reply to my question? I came across a similar discussion on a separate thread:

However, I have also seen people saying that having unused H1B petition is not enough to be cap-exempt. One should have been in active H1B status to be not subject to cap. Would truly appreciate your inputs. Thanks.

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On 7/1/2019 at 1:07 PM, yashvirs said:

 

Hi, I have an unused I-797B Approval Notice that was issued in 2013. The validity was from 10/1/23 to 8/23/2016. The notice was issued when I was working for company A in India. That said, I never got my H1B stamped and left company A to join company B (in India). Company B applied for my L1A, and I entered US in July, 2015 on the L1A visa. In 2017, I left company B to study MBA at a renowned US university. My visa status changed from L1A to F1. As I was about to complete my MBA in 2018, I applied for an OPT. The OPT ended on June 29, 2019. I am currently working for a tech company at San Jose. Since the OPT has ended, I am going back to India through the intra-company transfer process. My question is whether my current employer can use the old I-797B to file a new Cap-Exempt H1B petition. What are the chances of an RFE as my H1B status was never activated? I know that there can be multiple other reasons for the issuance of RFE, but can it be issued to me just because I never entered US on H1B. My I -797B has still not been revoked by my previous employer.

Hi yashvirs , Did you get any reply for the question posted? I am also in the same situation .People say that we should travel atleast once with H1B in order to be cap-exempt? 

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My company has applied for a new H1B with the old Approval Notice. I am a little realistic now. By looking at responses elsewhere, I am not very hopeful. Filing a new cap-exempt H1B with an unused I-797B is like searching for a jackpot in complete darkness; if you get the approval, you got lucky, and if you don't, blame it on the stars. I have seen people quoting certain clauses that lend themselves to multiple interpretations and can lead one to even more confusion. Some say that one is required to be in active H1B status at some point in time to be considered eligible for new cap-exempt H1B filing, while others say that unused H1B petition makes you cap-exempt. Legal opinions on this are not conclusive. Long story short, go consult your company's attorney and check whether he/she is still comfortable filing a new case for you. All the best!

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