Can I use the expired B company 2008 H1B petition (approved never stamped) for cap exempt 2013 ?


mano_k

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1)      Business VISA applied by EMPLOYER - A

2)       H1B petition approval received in FY 2009 (applied in Apr-2008 ) from EMPLOYER - B but never went for VISA stamping.

3)      Traveled multiple times on Business VISA from EMPLOYER - C between Nov 2010 to Jun 2012.

Questions

1)      My petition which was approved in 2008 is still valid in 2013? I don’t have approved I-797 to know the validity of approved petition.

a)      IF “YES”

Option -1

i)        EMPLOYER - B did not share any documents other than receipt number.

ii)       Can I appear for VISA stamping from NEW EMPLOYER from INDIA? Or I need to get visa stamping from employer who filed my H1B petition.

Option -2

i)   I can travel USA on H4 stamping.

ii)  My H1B petition which was approved in 2008 is still valid to go for Change Of Status (COS) from H4 to H1?

iii)     What is the process to get duplicate copy of approved petition (I-797) document from USCIS to transfer H1B to NEW EMPLOYER IN USA.

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The USCIS generally only considers an H1B applicant counted against the numerical H1B cap if s/he is physically present in the U.S. when the change of status to H1B takes effect or s/he is issued an H1B visa from a U.S. consulate abroad. Absent one of the above the USCIS may deny a new H1B petition filed as cap exempt. However, we have seen situations where USCIS has approved the H1B petition as cap exempt after disclosing that no visa was issued.

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I am re posting my question in better way :-)

VISA HISTORY:

  • Business VISA (B1) stamped (Applied by Employer – A)
  • H1B petition approval received in June -2008 from EMPLOYER – B but never went for VISA stamping.
  • Traveled multiple times on Business VISA (B1) for EMPLOYER - C between Nov 2010 to Jun 2012.

QUESTIONS

My petition which was approved in 2008 is still valid in 2013? I don’t have approved I-797 to know the validity of approved petition but most probably its expired.

If petition is valid, please suggest best option to get H1B stamping from INDIA or change of status to H1B from USA.

Option -1 (INDIA VISA STAMPING)

Can I appear for VISA stamping from new EMPLOYER by transferring my approved petition OR I need to get visa stamping from same employer who filed my H1B petition ?

Option -2 (USA CHANGE OF STATUS)

I can travel on H4 VISA (to be stamped) then apply for Change Of Status (COS) from H4 to H1 based on 2008 approved petition on cap exempt, Is it possible ?

Option - 3 (I 129 petition from new employer based on cap exempt)

Can new employer file H1B (I-129) petition under cap exempt (2008 petition approved but never stamped) ?

Thanks for your time reading my post..appreciate your response.

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Obfuscation is second nature for the legal profession. Basically have a new H1 sponsor file a Non cap H1 petition for you. They pay. You have nothing to lose. A plain reading of the statute makes one realize that cap counted means being approved for a H1 petition under the cap. No other meaning. Visa stamping or not, presence here or in Timbuktu cap counted refers to a physical fact and only fraud can pervert it.

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Obfuscation is second nature for the legal profession. Basically have a new H1 sponsor file a Non cap H1 petition for you. They pay. You have nothing to lose. A plain reading of the statute makes one realize that cap counted means being approved for a H1 petition under the cap. No other meaning. Visa stamping or not, presence here or in Timbuktu cap counted refers to a physical fact and only fraud can pervert it.

Thank you.Earlier I was informed "approved petition can have maximum 3 years of validity to utilise for VISA stamping". So I was confused If old petition can be used for cap counted quota or not, now I can look for new employer to sponsor my H1B petition under cap counted.

One last question: travelling on H4 visa then looking for H1B sponsor is legally correct in my case ?

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Obfuscation is second nature for the legal profession. Basically have a new H1 sponsor file a Non cap H1 petition for you. They pay. You have nothing to lose. A plain reading of the statute makes one realize that cap counted means being approved for a H1 petition under the cap. No other meaning. Visa stamping or not, presence here or in Timbuktu cap counted refers to a physical fact and only fraud can pervert it.

That was not obfuscation, that was an explanation of how the USCIS interprets the rules. What you refer to as "fraud", the government calls regulations.

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Thanks for replying to my post, I hope your reply will give confidence for all in similar situation.

I know two people who were in exactly same situation with regard to H1B approval and (no) stamping.

Both have transferred successfully to company in USA two years ago.

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No Offense meant. I was saying that people in the op's situation have successfully got into H1 status years after the fact and I was pointing out there is no 6 year limit and that based on current regulations one can have the remainder option for H1 even after 10 years as of now. I am puzzled as to how Government regulations are the same as fraud. The sorry fact is most of these so called regulations are regulations by diktat and not codified in law thus giving the top USCIS bureaucrats too much lee way.

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It is heartening to hear reports of USCIS exercising common sense and reasonableness in the consideration of many of these kinds of cases. However, USCIS regulations and policy interpretation carry weight and they must be given consideration, regardless of whether one thinks of them as "dictat" or guidance. Previous USCIS pronouncements on the basis of regulations and policy memoranda in this matter can and at times have been interpreted more strictly. Bottom line, USCIS has from time to time denied cases like these, whether there was initial fraud or there was no fraud. Also, note that this is not the traditional "remainder" time situation, where an individual has utilized some time in H status - this is a situation where a person has never had H status in the US, period. Consequently, this matter is firmly in a "gray" area, and it is irresponsible for anyone, much less a qualified attorney, to definitively pronounce that the law and regulations are more permissive than they actually are based solely on the majority of observed adjudications, without regard to USCIS statements on the same issue. It is quite frankly disrespectful of you to refer to my previous statement as "obfuscation" - but I accept that you meant no offense.

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In a forum various points of view are expressed. I would not expect these views to be looked upon as an attack on anybody, least of all a Lawyer. Nobody expects Lawyer replies here to be legal advice and frankly it is not and cannot be. For that one needs to hire a Lawyer. In any case thank you for clearing up the OP.

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