Last-minute H1B Cap Questions

[Attorney_23]

For this week's topic, Murthy Law Firm attorneys will be fielding your last-minute questions about the H1B cap, including questions about a possible lottery, Master's cap v. regular cap, multiple petitions, loss of a project, cap gap extensions for F-1 students, etc.
 

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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.
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[sitaram12]

Hello Sir,

Will there be an exemption from cap, if we have an unused but expired in 2010, H1B petition?

Thank you.

[zroyal]

Hi,

 

Company A is  filing H1B for my spouse. I came to know LCA has to be filed and approved before sending H1B application to USCIS. When asked employer, he told me that they are going to file H1B and LCA at the same time. Once LCA is approved, it will be directly send to USCIS. Can you please provide whether there will be any problem in this process. I really appreciate your help

 

Thanks

 

Zroyal

[Attorney_23]

Hello Sir,

Will there be an exemption from cap, if we have an unused but expired in 2010, H1B petition?

Thank you.

 

The USCIS technically only considers an H1B applicant counted against the numerical H1B cap if he is physically present in the U.S. when a change of status to H1B takes effect, or if 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 handled many cases where USCIS has approved the H1B petition as cap exempt after disclosing that no visa was issued.

[Attorney_23]

 

Company A is  filing H1B for my spouse. I came to know LCA has to be filed and approved before sending H1B application to USCIS. When asked employer, he told me that they are going to file H1B and LCA at the same time. Once LCA is approved, it will be directly send to USCIS. Can you please provide whether there will be any problem in this process. I really appreciate your help

 

 

Generally speaking, the LCA must be certified prior to filing the H1B petition.

[satya576]

Hello Sir,

 

1) Can we apply the H1 with multiple employers ?? 

Whats the disadvantage for this in the future??

eg: I am in OPT. My OPT will be ending in september so wanterto file H1 this year.

I am working with employer A from past 18months and at thetimefor applying for H1 my job was done and employer A doesnot even have inhouse projects also.So I just talked with employer B to file me ashis inhouseproject. But now on march 22nd I got an job opportunity from employerA so he also said he will file my H1with the new client project

 2) What are the chancesof getting the LCA before 03/29th if my employerA filledmy LCA on 03/21/2014.

3) Since I have to update my sevis and I20 if I changed my employer. If i can apply H1 with two different employers then what shouldI have to do with my I20.

 

please suggest me the best option in my scenario. whether to stick with both H1's or go with employer A or employer B?

Thank you inadvance for the reply. It makes alot of help for me.

[immiquest2014]

Dear Attorney, 

 

My H1b was applied in 2014 and approved as consular processing. This was my first H1b, I went for Visa interview and received 221(g). Traveled back to US on H4. I have few questions on cap-exempt.

 

1. Am I cap exempt as already counted in 2014 quota. any new employer can apply for cap exempt petition.

 

2. Can same employer who filed original petition can file for Change of Status from H4 to H1b while in US. Is it risky as there is no change in the end client. Should I look for other employers?

 

Thanks,

 

 

[zenpeace23]

Hello Sir/Madam, I worked in US for 6 years under H1-B category but left a few days before the expiry date on Sept 25th 2013. I am out of US to fulfill  'living abroad for 365 days'. My employer is applying for a H!-B this April under Master category. Will I be considered under the lottery system or I dont have to be in the lottery ?

I really appreciate your help.

[Attorney_23]

1) Can we apply the H1 with multiple employers ?? 

Whats the disadvantage for this in the future??

eg: I am in OPT. My OPT will be ending in september so wanterto file H1 this year.

I am working with employer A from past 18months and at thetimefor applying for H1 my job was done and employer A doesnot even have inhouse projects also.So I just talked with employer B to file me ashis inhouseproject. But now on march 22nd I got an job opportunity from employerA so he also said he will file my H1with the new client project

 2) What are the chancesof getting the LCA before 03/29th if my employerA filledmy LCA on 03/21/2014.

3) Since I have to update my sevis and I20 if I changed my employer. If i can apply H1 with two different employers then what shouldI have to do with my I20.

 

Generally speaking, a foreign national is permitted to be sponsored for H1B positions by multiple companies. However, a single employer is generally prohibited from filing multiple petitions on behalf of the same individual.

 

LCAs have been taking up to 10 days to process. However, the filing deadline to be included in a potential H1B lottery is April 7, not April 1.

[Attorney_23]

Dear Attorney, 

 

My H1b was applied in 2014 and approved as consular processing. This was my first H1b, I went for Visa interview and received 221(g). Traveled back to US on H4. I have few questions on cap-exempt.

 

1. Am I cap exempt as already counted in 2014 quota. any new employer can apply for cap exempt petition.

 

2. Can same employer who filed original petition can file for Change of Status from H4 to H1b while in US. Is it risky as there is no change in the end client. Should I look for other employers?

 

Thanks,

 

The USCIS technically only considers an H1B applicant counted against the numerical H1B cap if he is physically present in the U.S. when a change of status to H1B takes effect, or if 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 handled many cases where USCIS has approved the H1B petition as cap exempt after disclosing that no visa was issued.

[Attorney_23]

Hello Sir/Madam, I worked in US for 6 years under H1-B category but left a few days before the expiry date on Sept 25th 2013. I am out of US to fulfill  'living abroad for 365 days'. My employer is applying for a H!-B this April under Master category. Will I be considered under the lottery system or I dont have to be in the lottery ?

I really appreciate your help.

 

Generally speaking, an H1B worker must be eligible for the benefit requested at the time of filing. If you have been outside the U.S. since September 2013, you would likely not be considered eligible to apply for a new 6 year period of H1B time until September 2014.

[zenpeace23]

Generally speaking, an H1B worker must be eligible for the benefit requested at the time of filing. If you have been outside the U.S. since September 2013, you would likely not be considered eligible to apply for a new 6 year period of H1B time until September 2014.

Thank you for the reply. I am still wondering if you leave the country for 365 days, when they applied after 365 days do they have to apply it with the lottery system. Thank you.

[Attorney_23]

Thank you for the reply. I am still wondering if you leave the country for 365 days, when they applied after 365 days do they have to apply it with the lottery system. Thank you.

 

In order to get a new 6-year period of H1B time, a cap-subject petition would need to be filed.

[santoshhn]

When will i come to know whether my application has picked up in Lottery system?

[aryansharma84]

Hi,

 

I have one question..

I am working in US from last 5 years on L1B visa. I will be going back to india in June, 2014. My company is initiating H1B visa in this years cap. I am planning to stay back in india for 1 year so I am planning to come back in June,2015. Please confirm if my H1B petition got approved this year, i can use the same petition for 6 years after resetting the clock in June, 2015 or I will be getting just one year of this on this H1B petition.

 

Thanks a lot in advance for the information..

[Attorney_23]

When will i come to know whether my application has picked up in Lottery system?

 

No way to know for certain, but I suggest you read this article which provides an overview of the expected timeline based on last year's lottery:

 

H1B Cap Timeline Expectations for FY15

[avandana]

my brother got his h1b approved in 2008 and expired in september 2011. he got his visa stamped in india in 2008. he never used this h1b. he never came to US. if a new employer wants to apply h1b for him  this year will it come under CAP exempt? if CAP exempt then will he get his 6 years h1b time again?

[sivais040]

Hi,

 

1) My H1-B Visa was approved under Cap-Subject in 2010

2) Worked in US from Feb-2012 to Jan-2013 and went back to India 

3) Visa was expired in July 2013

4) Came back to US on H4 Visa and trying for a job

 

Question : If I find a job and can my employer file my H1-B Visa under Cap Exempt ?

 

Thanks

Siva

[Attorney_23]

my brother got his h1b approved in 2008 and expired in september 2011. he got his visa stamped in india in 2008. he never used this h1b. he never came to US. if a new employer wants to apply h1b for him  this year will it come under CAP exempt? if CAP exempt then will he get his 6 years h1b time again?

 

The USCIS technically considers an H1B applicant counted against the numerical H1B cap if he is issued an H1B visa from a U.S. consulate abroad.

[Attorney_23]

Hi,

 

1) My H1-B Visa was approved under Cap-Subject in 2010

2) Worked in US from Feb-2012 to Jan-2013 and went back to India 

3) Visa was expired in July 2013

4) Came back to US on H4 Visa and trying for a job

 

Question : If I find a job and can my employer file my H1-B Visa under Cap Exempt ?

 

Thanks

Siva

 

In general, a foreign national who has been counted against the H1B cap may remain in the U.S. in H1B status for a maximum of 6 years. If the foreign national leaves the U.S. prior to utilizing the full 6 years of H1B time and then wishes to return in H1B status, an employer may be able to file an H1B petition on the individual's behalf requesting the remaining period of H1B time.

[rohan1230]

Hi

My employer A is filing my H1 b on Client X  but another employer B suggested to file through him as well just to increase the chances in lottery to get pick up.Employer B will also file on same end client as X.Will it be consider as duplicate application as end client is same?Or will it be get rejected if any of this application or both  get pick up in lottery due to the same end client?

 

Thanks,

Rohan

[jairichi]

Hi

My employer A is filing my H1 b on Client X  but another employer B suggested to file through him as well just to increase the chances in lottery to get pick up.Employer B will also file on same end client as X.Will it be consider as duplicate application as end client is same?Or will it be get rejected if any of this application or both  get pick up in lottery due to the same end client?

 

Thanks,

Rohan

They are not considered duplicate applications as they are filed by two different employers.

[dayan1904]

Hi

Currently I am on H4 and I am applying for H1B with COS for fiscal year 2015 (FY15) in Normal processing. Due to some personal reason, I wanted to travel to India from May 15th to June 18th 2014 and also before coming back to US, I need to get H4 stamping done in India.

I have below queries:

1. What happens if the USCIS officer reviews my H1B case during my stay in India? Is there any risk of rejecting H1B processing all together or he/she may grant H1B approval with Consular process instead of COS?

2. What happens if the USCIS officer reviews my H1B case for approval after my return to USA? (In this situation, my current I-94 is different from one provided during H1B processing)

3. In this situation what happens when I go for H4 stamping in May 3rd week since I have applied for H1B?

Thanks.. Daya

[ashukla]

Hi Attorney, 

Below is the scenario with my H1B status:-

 

In Aug 2011 my first H1B petition got approved and was valid till 03/30/2014, with this petition I appeared for visa stamping in Nov 2011 and got 221G followed with case sent back to USCIS for review, USCIS recived this case on Nov 23,2011 but no response yet and validity got expired on 03/30/2014.

 

Later another employer filed H1B transfer for me and it got approved on Dec 20, 2011. I appeared for visa interview with this petition in Jan 2012 and again got a 221G followed with case sent back to USCIS for review. On 26 April, 2013 my second petition approval was revoked by USCIS but first petition is till pending for USCIS review.

.

 

Question- Just want to know that with the above mentioned scenario, am I still eligible for H1B cap exemption for this fisical year 2014-2015, if a new employer want to file an H1B. Revoked decision will be count under cap exempt ???

Or it is advisable to for a cap subject petition.

[Attorney_23]

Hi

Currently I am on H4 and I am applying for H1B with COS for fiscal year 2015 (FY15) in Normal processing. Due to some personal reason, I wanted to travel to India from May 15th to June 18th 2014 and also before coming back to US, I need to get H4 stamping done in India.

I have below queries:

1. What happens if the USCIS officer reviews my H1B case during my stay in India? Is there any risk of rejecting H1B processing all together or he/she may grant H1B approval with Consular process instead of COS?

2. What happens if the USCIS officer reviews my H1B case for approval after my return to USA? (In this situation, my current I-94 is different from one provided during H1B processing)

3. In this situation what happens when I go for H4 stamping in May 3rd week since I have applied for H1B?

Thanks.. Daya

 

In general, if a foreign national travels while a petition to change status is pending, the change of status request is considered to have been abandoned, and the case will be processed for consular processing. However, if the change of status has been approved and then the foreign national travels abroad and reenters the U.S. before the petition becomes effective, USCIS has taken the position that the change of status will still take effect.