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Attorney_25

H-1B Cap Exemption Issues

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For the next one week we will discuss issues surrounding changing employers/petitioners while in H-1B status. We touched on some cap-exemption issues in the previous two threads and you might want to review those first. You also will be able to find relevant articles on www.Murthy.com by searching on "H1B cap exempt."

 

Please post your relevant questions here.

 

Remember you can sign up for the Murthy Bulletin containing topical articles at www.Murthy.com in the subscription box on the right side of each page. See http://www.murthy.co...rvices/hire-us/ for information on scheduling a more personalized consultation with one of our experienced immigration attorneys.

 

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 that relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate section of the forum.
  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 include information that would identify any specific company, university, or individual (including yourself).

 

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Hello Attorney...

 

Looking for comments/suggestions from you very badly.. a brief description of my scenario is as below:

 

1. I had my H1B visa and traveled to US for the first time in Dec 2008.

2. I returned back to India in April 2010.

3. Traveled again to USA in December 2010 and returned back to India in March 2012.

4. My H1-B got expired in September 2013.

5. My current employer is now ready to do a L1-B for me.

 

Now, my questions are:

 

  1. For some reason, if my L1-B visa is rejected in the consulate, would I still be able to go ahead and apply for H1 under non-cap category? Or due I have to go through the       entire process from lottery all over again?

  2. Would I have to have some cooling period before applying for H1 after my L1-B rejection?

  3. Would my L1-B rejection, affect my H1-B approval in any way?

 

Your response would be really helpful now for me to take a major decision.

 

Thanks in advance!!

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Generally, where a cap-subject H-1B petition was approved in 2008, another H-1B petition can be filed and approved in 2014, not subject to the cap. Leaving the US and or receiving approval for a different classification (such as L-1B) does not change this.

 

There is no "cooling off period" after a denial.

 

An L-1B denial should not cause a problem for subsequent H-1B approval unless there was a finding of fraud or misrepresentation as to the L-1B petition, or the information presented in the L-1B petition tends to indicate that information presented in the H-1B petition is fraudulent or misrepresentative.

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Dear Attorney,

 

I need your suggestion for my case.

 

Currently, I am in OPT STEM which is expiring on Aug 11th, 2014. I have to apply for my H1B this year.

 

I am presently working for client A through Company A as a Software consultant.  Company A is filing my H1B. I am neither working at Client A location nor at Company A location. I am working remotely at B location. Will there be an issue while applying for H1B.

 

Please send your comments at your earliest.

 

Thanks in advance!

 

Satya

 

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Hello,

 

I am currently on L2-EAD, working for an employer directly since March 2013. My EAD is valid until Dec 2014.

 

I had an approved H1B earlier and was working for 1 year (Jan 2010 to Jan 2011) for a different employer and had to go back to my home country for sometime. Can i use this past H1b approval and request my current employer to file my H1B under Cap-Exception? Or will I have to through the H1B Cap in April?

 

My spouse will have to move from L1B to H1B to start his green card process. I dont want to loose my work status when his visa status changes.

 

what other option do I have here? Can I ask my employer to process my GC on my L2-EAD status?

 

Thanks!

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Satya, your question is not relevant to this thread so you might want to post elsewhere. Short answer is possibly; it depends.

 

Glen, If your spouse changes status to H-1B, your L-2 status will end. You will need to change your status also. Assuming you had a prior cap-subject H-1B approved in 2010 and it was not revoked for fraud, then you are exempt from the cap and can have your COS to H-1B filed at any time but must be filed before your L-2 status ends.

 

I'm not sure why you say your spouse must change to H-1B for the GC process. I am assuming this is an employer's requirement and not a legal requirement.

 

As always, for advice based on your specific situation, please schedule a consultation with a qualified attorney, of which our firm has many,

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Dear Attorney - Thanks for the insight.

 

My spouse was told, since he has already completed 2 years on L1B, if GC is applied now on the L1B status then he will just have 3 years to stay in US as the L1B status cannot be extended beyond 5 years. But in case of H1B, the stay can be extended until you get the GC with a approved labor. Is this right statement?

 

Can my employer process my GC now (with L2 EAD) and have my COS to H1-B when my spouse move to H1-B? will they have to restart my GC process fresh when my status change from L2 to H1B?

 

Appreciate all your responses!

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Normally a person can complete 5 years on L-1B, switch to H-1B for the 6th year, and then continue to extend H-1B based on GC process started while person is on L-1B.  It may be a good idea to switch to H-1B earlier as there is a risk of not "winning" the H-1B lottery the first time around.

 

GC process can be started while a person is in any status or in no status / outside the US. There is a risk to certain nonimmigrant statuses such as B-2 or F-1 because of a requirement to maintain nonimmigrant intent, but not H-1B/H-4 or L status, which are dual intent.

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Dear Attorney - Thanks for the response.

 

My spouse had H1B before, but just for 1 year (jan 2010 to Jan 2011). He was on L1B for 5 years before that. So he spent total 6 years (L1+H1) last time.

 

Do he qualify for the cap1 exemption based on his previous H1 approval?

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If the person has been counted against the H-1B cap within the previous 6 years he is definitely exempt from the cap for a new H-1B, whether it is COS from another status, or is a consular petition for someone outside the US (or out of status). (As noted above, there is only one exception, where the prior H-1B is revoked for fraud, which is pretty uncommon.)

 

You may want to schedule a consult with an attorney to discuss the details of your and your husband's cases.

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Hi

 

I want to know the cap exempt period.  I have a H1 Approved petition for 2006 - 09/30/2009 , but visa is not approved , as  the Application processig information - returned to USCIS for further review and never got back.

 

Now using this H1 approved, can i file a new petition under cap exempt?

 

If yes, Will there be any period after which the camp exempt will expire for this case.

 

Regards

Mohan

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If the person has been counted against the H-1B cap within the previous 6 years he is definitely exempt from the cap for a new H-1B, whether it is COS from another status, or is a consular petition for someone outside the US (or out of status). (As noted above, there is only one exception, where the prior H-1B is revoked for fraud, which is pretty uncommon.)

 

You may want to schedule a consult with an attorney to discuss the details of your and your husband's cases.

 

I want to point out that this answer only addresses cap exemption and not whether the person is actually eligible to receive H-1B status. If a total of 6 years of H-1B + L-1 status have been used, then it is not possible to change status back to H-1B without a labor certification having been filed 365 days previous or an I-140 approved. Of course the other option is to spend a year outside the US and start a new 6-year H-1B period.

 

Please let me know if further clarification is needed.

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Hi

 

I want to know the cap exempt period.  I have a H1 Approved petition for 2006 - 09/30/2009 , but visa is not approved , as  the Application processig information - returned to USCIS for further review and never got back.

 

Now using this H1 approved, can i file a new petition under cap exempt?

 

If yes, Will there be any period after which the camp exempt will expire for this case.

 

Regards

Mohan

 There are two areas of risk here - that the petition was counted against the cap over 6 years ago, and that the petition was sent back by the consulate to USCIS for revocation. If a cap-counted H-1B petition is revoked for fraud, then the person is actually "uncounted" against the cap.

 

A recommended strategy in this type of situation is to file another cap-subject petition. If this is not possible, then a cap-exempt petition can be tried, but the employer needs to realize that they are risking that USCIS will take the fees and then deny for not being cap-exempt.

 

It may be possible to obtain information about the disposition of the prior petition through a FOIA request. It is advisable to discuss this issue further with an attorney as a petition revoked for fraud could have long-term effects on the beneficiary, depending on the specific facts.

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Dear Attorney,

 

I earlier got my H1B petition approved in the year 2012 when I was working with my earlier employer but during this period I quit my job and joined other employer.

 

My visa was never stamped and my earlier employer revoked the petition after 6 month I left the organization (revoked in 2013).

I presently don't have a copy of my approval with me. 

 

I sent a request from India to FOIA with G-639 form with a Lawyer attestation.

 

1. Do I still have the cap exemption as my petition got revoked by my earlier employer?

2. If cap exempt, What is the process of getting cap exemption thorough a new employer for processing the H1B?

 

Appreciate if you can help me with the details to process my H1B successfully.

 

Thanks in advance.

 

Regards,

Murali 

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I want to point out that this answer only addresses cap exemption and not whether the person is actually eligible to receive H-1B status. If a total of 6 years of H-1B + L-1 status have been used, then it is not possible to change status back to H-1B without a labor certification having been filed 365 days previous or an I-140 approved. Of course the other option is to spend a year outside the US and start a new 6-year H-1B period.

 

Please let me know if further clarification is needed.

Thanks Attorney!

 

So, if I understand it right, if a person has spent total 6 years (5-L1+1-H1) and have spent 1 year outside US and returned to US on L1B again, he can apply for a fresh H1-B under cap exemption during any time of the year and start working on H1-B as soon as it is approved.

 

Is that right statement?

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When a cap-subject H-1B petition is approved, the beneficiary is counted against the cap at that time. There is language in the law regarding being "issued a visa or otherwise provided status," but the effect of that is not clear where the reality is that USCIS counts based on petition approval, not based on visa issuance and not based on provision of status.

 

The only basis under the law and regulations to "uncount" someone is where USCIS investigates the petition and revokes it for fraud. A revocation based on notification/withdrawal by the H-1B petitioner is not revocation for fraud.

 

Therefore, where a cap-subject petition is approved and then not revoked for fraud, USCIS will accept and process a new petition for that beneficiary.

 

To have the petition processed, the new employer must file a new H-1B petition, indicating that the beneficiary was previously counted against the cap and providing information about that prior petition.

 

If you don't have any documentation of the approval of the prior petition, filing a FOIA request may obtain sufficient information to prove cap-exemption.

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Dear Attorney, 

 

I had H1B status from October 2008. Later in November 2009, I decided to go back to school and applied for a COS from H1 to F1. I had already resigned from my job on October 2009, once I got my I20 from the school. But my school started only from January 2010. So in the COS process, i got an RFE asking for my recent paychecks. But since I had resigned, I had no paycheck for that month. So my COS was declined. Some excerpts from the Letter of Decision follows:

 
".......although the applicant will be in a "period of authorized stay" the applicant's nonimmigrant status will expire prior to the program start date listed on the SEVIS I-20. As such, USCIS must deny this request for a change of status because the applicant will have failed to maintain a valid nonimmigrant status until the requested program start date listed on the SEVIS I-20.
         USCIS is not initiating removal procedures against you at this time. The decision resulting in the denial of Form I-539 leaves you without lawful immigration status and you are now present in the United States in violation of the law. you are required to depart the United States within 30 days from the date of this decision, or be subject to removal proceeding........"
 
So, after that, i returned back to my country on January 2010. I had married my wife, who is on a H1B visa on November 2009. after i got the RFE. 
I have been out of the US since 2010, and I applied for a H4 visa last year2013, and got it, as a dependent of my wife. 
 
I am planning to go to US soon. I would like to search for a job myself. Below are my concerns:
 
1. If I find a job and a company willing to sponsor by H1B, will I be subject to the H1B cap quota? (since I had H1B from Oct2008-Oct-2009, but have been out of US for the past 4 yrs)
2. Will I be able to work immediately, or will I have to wait until October to start working?
3. If I have a company willing to hire me, and they need me to start immediately, what are my options?

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Thanks Attorney!

 

So, if I understand it right, if a person has spent total 6 years (5-L1+1-H1) and have spent 1 year outside US and returned to US on L1B again, he can apply for a fresh H1-B under cap exemption during any time of the year and start working on H1-B as soon as it is approved.

 

Is that right statement?

 

In a situation where a person has completed a full 6 years in H-1B + L1B time, there is no remainder to use in a cap-exempt petition. Such a person who has then spent one year outside the US and then returned on a "fresh" L-1B has chosen to restart the clock on H-1B and L-1 time, and is subject to the H-1B cap, not exempt.

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Hello,

 

Subject to H1B 2015 cap exempt or not?

Asked about 1 hour ago - Edison, NJ
  • H-1B Visa

H1 B visa SEP 2005 -SEP 2007 
I 94 DEC 2005 - SEP 2007 
After that my multiple H1 extension are pending i stayted till NOV 2008 in usa and returned (since all my multiple pending petitions denied.. ) 
assume i can fall in BAN for three years.. (its completed).. 

Now can i fall in H1B cap exempt or not ?

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As discussed above and in previous threads, if you were counted against the cap (H-1B approved) more than 6 years ago, there is a risk that USCIS will deny an H-1B petition for you as not being cap-exempt. The most conservative (safe) option for you is to have an H-1B petition filed for you the first 5 business days of April, to be re-counted against the cap, and the first day you could start to work is October 1.

 

That being said, USCIS has accepted petitions as cap-exempt where the beneficiary was counted against the cap more than 6 years previous and has been out of the US for a year or more. It's unclear what is their legal basis for doing this - thus, the risk.

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1. Can two H1B petitions be filed simultaneously? Can a cap-subject petition be filed for the same person while a cap-exempt petition processing is in progress? 

2. What would happen then if one of them is approved and the other is rejected? Can this person work on H1B if one of the petitions is approved?

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...

I have been out of the US since 2010, and I applied for a H4 visa last year2013, and got it, as a dependent of my wife. 

 
I am planning to go to US soon. I would like to search for a job myself. Below are my concerns:
 
1. If I find a job and a company willing to sponsor by H1B, will I be subject to the H1B cap quota? (since I had H1B from Oct2008-Oct-2009, but have been out of US for the past 4 yrs)
2. Will I be able to work immediately, or will I have to wait until October to start working?
3. If I have a company willing to hire me, and they need me to start immediately, what are my options?

 

 Your prospective employer should be able to have a cap-exempt petition accepted for you, with an immediate start date. Your safest bet is to have the new petition approved for you within 6 years of the approval date of your prior H-1B petition. However, a petition filed after that may be accepted.

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Please note that the item on the USCIS form I-129 which related to taking advantage of cap-exemption based on previously being counted states,

 

The beneficiary of this petition: (1) was previously granted status as an H-1B non-immigrant in the past 6 years, (2) is applying from abroad to reclaim the remaining portion of the six years, or (3) is seeking a 7th year extension based upon AC21 and the beneficiary's previous H-1B petitioner/employer was not a CAP exempt organization as defined above in a., b., and c.

 

As usual, the item is unfortunately-worded to possibly permit a few people to check the block although they are not cap-exempt, but more significantly, to exclude some people who should be considered cap-exempt but don't fit within the exact wording.

 

If you do fit within the wording, but your prior H-1B petition was approved too many years ago, USCIS may accept the petition (including fees) and deny it. If you do not fit the wording, but should be cap-exempt based on a previously-approved H-1B petition, you may need to have an attorney argue your exemption for you.

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Hello Attorney,

 

I have a question about changing employers on H1B.

 

My scenario:

1) 1st Not for Profit H1B from September 2008 to August 2011.

2) Changed employer to 2nd Not for Profit H1B from April 2011 to March 2014.

3) Got I-140 approved in 2012 from 2nd Not for Profit employer and also received H1B extension from March 2014 to April 2017 recently with same not for profit employer.

 

Now, I have an offer from a for profit employer what should I do? All my H1B's are from Not for Profit employers. Will I be able to switch over my Not for Profit H1B to a for Profit H1B? Or I will have to apply in April 2014 and wait until October 2014 to start with my for Profit employer?

 

Please guide.

 

Thanks in Advance.

 

Jack.

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Hello Attorney,

 

I have some queries about my H1B Cap exemption.

 

I got my H1B petition approved in 2007 and got my visa stamped in 2008 through my (current) employer. But I couldn't travel to the US.

In 2010, my H1B got expired. Now my queries are,

    1) if I want to travel to US, through some other employer (from US) wishes to sponsor I mean if they are fine to do an LCA, can I do that?

    2) Would I be in the cap exemption or do I need to start the H1B process from scratch?

    3) Do I need to get any approval from my current employer?

    4) If I fall under the H1B cap exemption category, is it fine that I just need to stamp my visa with employer(new).

 

Expecting your guidance on this.

 

Thanks in advance!!

 

Cheers

Gopi

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