Question about H1-B porting

[saurabh99]

Hello,

It would be nice of you if you could please answer my following question.

My previous employer had put in a petition for my H1-B visa to be effective from October 1st, 2012 which is pending currently. Then they let me go and they say that they will withdraw the petition effective July 13th, 2012 which was my last day of employment as they have no intention of employing me further. I am currently looking for a new job but I can only work untilDecember 1st, 2012 on my current OPT STEM extension and the H1-B visa quota for this year is already over.

I had asked my previous employer to not withdraw my H1-B so that I can port it to a new employer. They said that this is not possible unless I am already in H1-B status which will not be happening in my case as my employment with the company is over before the H1-B effective date of October 1st, 2012.

Is this true?

If not then in which cases is the porting to the new company possible? Is it possible in the following 2 cases?

1. While the H1B petition still pending with the old company and they decide not to withdraw

2. When the H1B petition is approved with the old company but I never worked with the old company

My previous employer is saying that since the USCIS had accepted my H1-B application and I have a receipt number for that, a new employer may be able to file a new H1-B petition for me using that receipt number and like this I will not be counted against the cap for H1-B visas again. Can this happen?

Is the answer to this question true in all cases? Is it possible in the following 2 cases?

1. While the H1B petition still pending with the old company and they decide not to withdraw

2. When the H1B petition is approved with the old company but I never worked with the old company

Thank You!

[pontevecchio]

Unless you have a H1 petition approved subject to cap, another H1 sponsor cannot file a H1 for you unless the cap is not filled.