H1B Transfer.. / Extension - currently Not in US

[Diorsdune]

SCENARIO:

I was in US from May'08 until Jan' 2011 on H1b with company A.

Company B filed H1b, in Sept'11, valid only till Oct'12 (need an extension) for client X (haven't gone for a stamping with employer B & haven't worked with them yet - so no pay-stubs either).

I have not worked with company B as yet, however, now there is a client change & I will be needed to work with client Y (through company B) at a new location.. & so I will need an amended petition (along with an extension) before I go for stamping.

Meanwhile, Company C is willing to hire me as well..

I would like to keep my options open.... & so wanted to know the options I have

QUESTIONS:

1.a) Company B files an Extension & amendment application for me..?

1.b) Can an extension application be filed given that I am not in US & the original H1 petition was not used at all.

1.c) Does company B need to withdraw the petition they first filed with requirement at client X valid only till Sept'12, before they apply for the Amendment & Extension.

2) Can Company C file for a new H1 application altogether? (I would think I am no longer cap exempt as the H1 visa on my passport expired in Oct'10 & I have been out of US for almost 1 & 1/2 years).

3) Since I currently have a valid H1b petition (valid until Oct'12).. does that make me cap exempt?? Also, I am still within the 6 yr period of the first time I applied which was subject to cap (though have been out of US for abt 1.5 yrs now, confused.... grrr....)

4) Can company C file for a transfer (against the petition with company B valid till Oct'12) when company B has applied for extension & amendment?

5) Can Company C file for a transfer in case company B has already applied to withdraw the first petition.

Please let me know if you need additional details to be able to answer.. I really need these answers in order to take any decision/action on my case....

Thank you for reading.. would highly appreciate a quick response.

[Diorsdune]

Please can someone help............................

[pontevecchio]

1.a) Company B files an Extension & amendment application for me..?

" They will be merely filing a H1 petition for you since you are not subject to the cap. The other words are meaningless."

1.b) Can an extension application be filed given that I am not in US & the original H1 petition was not used at all.

"Same as the previous reply."

1.c) Does company B need to withdraw the petition they first filed with requirement at client X valid only till Sept'12, before they apply for the Amendment & Extension.

" I suspect not."

2) Can Company C file for a new H1 application altogether? (I would think I am no longer cap exempt as the H1 visa on my passport expired in Oct'10 & I have been out of US for almost 1 & 1/2 years).

"Yes to the first part and NOT TRUE to the second"

3) Since I currently have a valid H1b petition (valid until Oct'12).. does that make me cap exempt?? Also, I am still within the 6 yr period of the first time I applied which was subject to cap (though have been out of US for abt 1.5 yrs now, confused.... grrr....)

" No. You are only cap exempt because you got through the cap and have not finished the total of 6 years in H1 status. This total can be over a decade if necessary though not usually likely."

4) Can company C file for a transfer (against the petition with company B valid till Oct'12) when company B has applied for extension & amendment?

" C can file a H1 petition for you at any time and what B does is IMMATERIAL"

5) Can Company C file for a transfer in case company B has already applied to withdraw the first petition.

" C can file a H1 petition for you irrespective of what B, X or Z do or do not do.

"

The climate is very hostile in case of layers and you may not get stamped. Let all of them file a H1 petition for you and choose the one with least layers in between if you have to. Just a polite remainder that Lawyers have their uses specially in a complicated matter. Best of luck.

[Diorsdune]

Thank you Pontevecchio.

Now that I am clear that I am cap exempt & that company C can file a NEW Cap exempt Visa without doing a transfer.. I can confidently approach them to work on filing a new H1b for me. Else, I would have waited till April'13 to approach them. I was just trying to do a little bit of home work before I speak with Company C's Immigration Attorney.

I did not want Company C (offering Permanent employment) to face any hassle when filing for me (to avoid jeopardizing opportunities that could come up in the future).

Thank you very much for your kind guidance & support, I highly appreciate it.