Last-minute H1B Cap Questions

[Attorney_23]

 

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 On 26 April, 2013 my second petition approval was revoked by USCIS but first petition is till pending for USCIS review.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.

 

 

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.

[mac25]

i have finished 6yrs on h1b and left the country in aug 2013. can i file h1b this april in the cap to start for oct 1 employment thus fullfiling 365 days outside the country by the time i start employment. i read in your forum i should wait till1yrcompletion before i can file if quota available. my point is you can file h1b 6months in advance and by the time i start my employment or even to enter US makes it 365 days requirement completion as i can enter only 10 days before oct 1st. As well there will be visa at aborad and port of entry checks makes it there will be no abuse of the 365 days requirement if uscis aproves h1b. i called several times to uscis and talked to different higher level people and i got answer both ways, some say you need wait 365 days to file and some say you can file in april 1 st since the h1b is for oct and you can file 6 months in advance for h1b. can you shed some light on language what it says and the technicality. also can you tell me any cases if you know that h1b files before 365 days and got approval. thank you for your time

[ritesh024]

Hi Attorney,

 

Do you know how many H1B petitions under Masters degree cap were not selected in the lottery in 2014?

 

Thanks!

[Attorney_23]

i have finished 6yrs on h1b and left the country in aug 2013. can i file h1b this april in the cap to start for oct 1 employment thus fullfiling 365 days outside the country by the time i start employment. i read in your forum i should wait till1yrcompletion before i can file if quota available. my point is you can file h1b 6months in advance and by the time i start my employment or even to enter US makes it 365 days requirement completion as i can enter only 10 days before oct 1st. As well there will be visa at aborad and port of entry checks makes it there will be no abuse of the 365 days requirement if uscis aproves h1b. i called several times to uscis and talked to different higher level people and i got answer both ways, some say you need wait 365 days to file and some say you can file in april 1 st since the h1b is for oct and you can file 6 months in advance for h1b. can you shed some light on language what it says and the technicality. also can you tell me any cases if you know that h1b files before 365 days and got approval. thank you for your time

 

The individual needs to be outside the United States for at least one year prior to filing such a petition in order to be eligible for a new 6-year period.

[Attorney_23]

Hi Attorney,

 

Do you know how many H1B petitions under Masters degree cap were not selected in the lottery in 2014?

 

Thanks!

 

Sorry, I do not. As far as I am aware, the only information provided by the USCIS for the previous fiscal year was that "USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption." I never saw any information released providing a breakdown of how many of those 124,000 cases were eligible for the master's cap.

[ashukla]

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.

Hi Attorney.

Thanks for the reply.

I forgot to mention that my case was change of status from F1-H1B, so based on your reply I believe I am eligible for Cap Exempt criteria.

I have read some where in this blog that you will be eligible for cap exempt class even your petition was revoked earlier except for the reason of Fraud.

My second petition was revoked by USCIS, before making this decision they have contacted my employer and asked for the client letter, they made this call after an year and half, so by that time I was out of client contract and my employer replied appropriately for this.

I feel that my petition was not considered as fraud and its not been revoked for same.

Is there any way if we can find out the reason for revocation of the petition.

 

Thanks

[Attorney_23]

Is there any way if we can find out the reason for revocation of the petition.

 

Thanks

 

You could file a Freedom of Information Act (FOIA) request.

[abhkagrawal]

Hello,

 

I am a student on F1 visa on OPT(extension) . My OPT(extension) is expiring in July. My future employer has filed for my H1 for Fiscal year 2015. So, I will request my school, where I completed my masters degree in US to do my H1 Cap Gap extension to cover from July to September.

 

Can you please tell me during the H1B cap gap extension, Can I work for other employer than the H1 Sponsoring company?

 

Thanks very much.

 

Abhi

[Attorney_23]

Hello,

 

I am a student on F1 visa on OPT(extension) . My OPT(extension) is expiring in July. My future employer has filed for my H1 for Fiscal year 2015. So, I will request my school, where I completed my masters degree in US to do my H1 Cap Gap extension to cover from July to September.

 

Can you please tell me during the H1B cap gap extension, Can I work for other employer than the H1 Sponsoring company?

 

Thanks very much.

 

Abhi

 

 

During cap-gap, the individual remains on OPT, subject (for the most part) to the standard OPT rules. The individual does not typically need to join the H1B employer until the H1B start date.