H1B visa expired by 2014 October

[Bharanidharan]

Hi,

I had applied for H1 in Year 2011 and it was approved by USCIS. Got an RFI while I went to stamping in June 2011 and after submitting the documents they rejected and sent it back to USCIS. My employer got that approved again and the new I797 was valid from November 2012 to October 2014.

I got it stamped in mid 2013 with validity till October 2014. But I never travelled to US using that Visa, and it expired.

I am looking forward to seek a renewal for this,

I would like to know, Is it possible for the new sponsor to file an application based on the earlier visa?

Is it advisable to renew the earlier expired visa or to file for a new fresh H1B?

Appreciate any reponse to this...

Cheers !!

[Surfer123]

Since you were cap-counted before, any employer can file a cap-exempt H1B for you. Regarding the best course, if your old employer and any new employer you find are consulting firms or outsourcing firms, there will be no difference in odds of approval etc. But if either your old employer or new are a product based company and not body shops, your odds will improve by a big margin. Bottom line, work for a H1B sponsoring employer who is legit and has a legit job, if u want to improve your petition and subsequent visa approval chances

[satya2k1]

bharani,

If you have never worked on H1 in the USA then your H1 was never cap-counted.  Your employer have to file a new H1B non-cap exempt again.

[Surfer123]

I would check with an attorney and also research more but I believe you are cap-exempt for up to 6 years from your first cap counted H1B start date - so that would be from Nov 2012 to Nov 2018 in your case and if your employer initiates a new cap-exempt petition prior to Nov 2018, you might be able to avail the benefit of being cap-exempt. It used to be that way few years back but not sure if anything changed since.

Anyway, consult an attorney or your sponsoring employer legal team, to be on safe side

[satya2k1]

@surfer123..

OP got H1B approval while living in other country, and he went for stamping which got denied.  So, he never worked in USA and never had valid H1B status.  So his H1B was never activated and never counted towards cap. 

His new H1B petition would be non-cap exempt.  I am not an attorney this is purely my personal opinion.  Moreover, employer's attorney will take care of h1 petition.

[Surfer123]

8 hours ago, satya2k1 said:

@surfer123..

OP got H1B approval while living in other country, and he went for stamping which got denied.  So, he never worked in USA and never had valid H1B status.  So his H1B was never activated and never counted towards cap. 

His new H1B petition would be non-cap exempt.  I am not an attorney this is purely my personal opinion.  Moreover, employer's attorney will take care of h1 petition.

If I read it correctly, he seems to have gotten his visa approved the 2nd time around with a new cap-subject petition "My employer got that approved again and the new I797 was valid from November 2012 to October 2014. I got it stamped in mid 2013 with validity till October 2014. But I never travelled to US using that Visa, and it expired."

[satya2k1]

16 hours ago, Surfer123 said:

If I read it correctly, he seems to have gotten his visa approved the 2nd time around with a new cap-subject petition "My employer got that approved again and the new I797 was valid from November 2012 to October 2014. I got it stamped in mid 2013 with validity till October 2014. But I never travelled to US using that Visa, and it expired."

Yes, he got visa stamped at consulate.. but never traveled to USA and never worked on H1B. So, he was never on H1B status in USA.

[Surfer123]

1 hour ago, satya2k1 said:

Yes, he got visa stamped at consulate.. but never traveled to USA and never worked on H1B. So, he was never on H1B status in USA.

It doesn't matter whether he traveled to US and worked on H1B. He was cap counted.

"OP got H1B approval while living in other country, and he went for stamping which got denied" - It is very obvious from your reply that u thought he didn't have a valid visa stamped and didn't realize he got it approved 2nd time around.

Anyway, question was just about whether he will be cap-exempt or not when filing a new H1B petition and he is at this point of time. In the past, once cap counted and had an approved I-797, an employer could file a cap-exempt H1B petition for up to 6 years from the latest H1B approval start date. I can't be sure if something changed in this regard - an immigration attorney sure would and hence asked him to seek help from a qualified attorney.

[pontevecchio]

Once the visa stamp based on an approved H1 petition is obtained, the person is considered cap counted.

[satya2k1]

I heard both sides. Some said that they had problem getting cap-exempt even though they had H1B visa stamped, but did not travel to USA. It is better to get an opinion from an attorney.