NOIR on H1B - August 2017

[Dagny]

 

Hi,

I am from India and have not entered US under H1B. I entered US on H4.
Here is my situation:
1. I got approved H1B petition in January-2017, with validity till January-2018.
2. I went for Stamping in May-17, where Chennai Consulate has given Blue Slip - 221 G .And i
3. In August-2017 informed that petition being returned to USCIS for review with the recommendation that it be revoked .
4. As of today status @ USCIS site is still approved .
5. As of today, my employer as not received any update. Not sure whether to trust him/her.

I understand that next step by USCIS probably would be sending my employer NOIR(Notice of intent to revoke). I have few questions on the same and waiting for the experts opinion.

1. Now that my petition is under USCIS review, Is it possible to file H1b from another employer using same petition ( i.e H1b transfer)? 

If Yes, will that be cap exempt?
2. If my employer receives NOIR, then at this stage Is it possible to do H1B transfer? If Yes, will that be cap exempt?
3. Assuming worst will come true, if my petition is revoked then at this stage, Is it possible that another employer could file new H1B-petition that will that be cap exempt?

4. My existing approved petition expires in Jan 2018 . So whatever happens in this NOIR stage , if I find employment say in Feb 2018 then will it be like new employer filing new H1B petition in cap exempt ?

 

5.What are my options ? Please advise .

[pontevecchio]

Either the USCIS will reaffirm the petition in which case you can reapply for the visa again or they will agree with the DOS that the petition should be revoked for cause. Your options are limited. Wait for the decision which may take months or plan to get a credible H1 sponsor to file in April, 2018 subject to cap.

[Dagny]

4 hours ago, pontevecchio said:

Either the USCIS will reaffirm the petition in which case you can reapply for the visa again or they will agree with the DOS that the petition should be revoked for cause. Your options are limited. Wait for the decision which may take months or plan to get a credible H1 sponsor to file in April, 2018 subject to cap.

Thanks . Doesn't it happen that USCIS will provide employer chance to respond to NOIR ? How much time is left before I find new employer who could file new H1B subject to  cap exempt ? With premium processing not available it is difficult to find new employer .

[satya2k1]

10 hours ago, Dagny said:

 

Hi,

I am from India and have not entered US under H1B. I entered US on H4.
Here is my situation:
1. I got approved H1B petition in January-2017, with validity till January-2018.
2. I went for Stamping in May-17, where Chennai Consulate has given Blue Slip - 221 G .And i
3. In August-2017 informed that petition being returned to USCIS for review with the recommendation that it be revoked .
4. As of today status @ USCIS site is still approved .
5. As of today, my employer as not received any update. Not sure whether to trust him/her.

I understand that next step by USCIS probably would be sending my employer NOIR(Notice of intent to revoke). I have few questions on the same and waiting for the experts opinion.

1. Now that my petition is under USCIS review, Is it possible to file H1b from another employer using same petition ( i.e H1b transfer)? 

If Yes, will that be cap exempt? 

If you have entered US on H4 status, then your H1 is gone.  You are currently in H4 status.  So there is no question of transfering H1. 
2. If my employer receives NOIR, then at this stage Is it possible to do H1B transfer? If Yes, will that be cap exempt?

You should have worked on H1B for the original petitioner to consider to be cap exempt for applying through another employer.  If you haven't worked a single day for the original petitioner/employer on H1, then your H1 was not counted towards cap and it is gone.
3. Assuming worst will come true, if my petition is revoked then at this stage, Is it possible that another employer could file new H1B-petition that will that be cap exempt?

Repetitive question, same response as #2.

4. My existing approved petition expires in Jan 2018 . So whatever happens in this NOIR stage , if I find employment say in Feb 2018 then will it be like new employer filing new H1B petition in cap exempt ?

No, the new employer cannot file under cap exempt, unless it is a non-profit organization or university.. otherwise, your new employer have to file new H1B against new quote in FY 2019,i.e, in April 2018.

 

5.What are my options ? Please advise .

 

[Dagny]

15 hours ago, satya2k1 said:

 

@satya2k1

[Dagny]

15 hours ago, satya2k1 said:

 

Thanks for your response Satya. I read one of the forums that it takes couple of months ,  after consular officer sends petition back to USCIS with recommendation to revoke  ,  before USCIS sends NOIR to petitioner and then petitioner having opportunity to rebut findings concerning the case. In the meantime  , like before the worst case of petition revocation happens , is it possible that I find new employment and will new employer be able to file new H1B petition cap-exempt ? 

Is there anyway to save this so that I do not have to got through new lottery ? 

[satya2k1]

23 hours ago, Dagny said:

Thanks for your response Satya. I read one of the forums that it takes couple of months ,  after consular officer sends petition back to USCIS with recommendation to revoke  ,  before USCIS sends NOIR to petitioner and then petitioner having opportunity to rebut findings concerning the case. In the meantime  , like before the worst case of petition revocation happens , is it possible that I find new employment and will new employer be able to file new H1B petition cap-exempt ? 

Is there anyway to save this so that I do not have to got through new lottery ? 

Hi,

Are you in the US now?  If yes, What is your current status in the USA? Have you worked for any employer on H1 status in the USA before?

[Dagny]

5 hours ago, satya2k1 said:

Hi,

Are you in the US now?  If yes, What is your current status in the USA? Have you worked for any employer on H1 status in the USA before?

@satya2k1: Hi Satya .. I am in US now and on H4 visa .I have not worked for any employer on H1 status till now .

[satya2k1]

On 8/23/2017 at 7:06 PM, Dagny said:

@satya2k1: Hi Satya .. I am in US now and on H4 visa .I have not worked for any employer on H1 status till now .

so you don't have an approved H1 yet, it is still under consideration.  Your new employer cannot apply for H1 cap-exempt based on previous employer's petition, unless you have an approved H1. 

[Dagny]

On 8/24/2017 at 9:30 PM, satya2k1 said:

so you don't have an approved H1 yet, it is still under consideration.  Your new employer cannot apply for H1 cap-exempt based on previous employer's petition, unless you have an approved H1. 

@satya2k1 : I have approved h1b petition .I do not have h1b visa . So this being the case , please let me know .

[satya2k1]

1 hour ago, Dagny said:

@satya2k1 : I have approved h1b petition .I do not have h1b visa . So this being the case , please let me know .

Eventhough you have approved H1B petition, but you haven't initiated that H1B by working with employer. So, you were never in H1 status, and now you are in USA on H4 status.  If you find a new employer, it won't hurt to apply for H1B transfer and change of status from H4 to H1. 

[JoeF]

5 hours ago, Dagny said:

@satya2k1 : I have approved h1b petition .I do not have h1b visa . So this being the case , please let me know .

Since you haven't worked for the H1 employer, and also don't have an H1 visa, you are not considered counted towards the H1 cap.

That means a transfer is not possible. A new employer could file an H1 in next year's quota.

[Dagny]

thank you