H1 Withdrawn – Moved to H4 – Now want to move to H1

[KAL17]

Hi,

Thanks for checking my query.

My wife was having H1 visa and she got a RFE after that she had to go to INDIA and since RFE was not cleared she withdraw her H1 and came back to US on H4. Now my wife wants to do the job. so I would like to know if she has an offer with 'X' company. If 'X' company wants to apply for H1 now, Does H4 to H1 transfer (note that previous H1 already withdrawn) under yearly quota or 'X' company can apply anytime without quota?

Because the 'X' company was saying they can't apply as previous H1 was withdrawn and if they proceed it will be under new quota and this year quota is over and have to wait till next year.

Can you please assist with my question?

Thanks in advance.

Regards

Ratna

[kiran234]

In her case, H1B was never approved, So an employer must file H!B for her under CAP, unless the employer/job is CAP exempt.

X statement is correct. Need to wait until April 1 2013 to apply, If approved earliest date to start is Oct 1 2013.

[JoeF]

If the H1 petition was withdrawn, she hasn't bee counted for the quota, so a new H1 can only be file in next year's quota.

[KAL17]

Kiran/Joe, But my wife worked on H1 for 4 years before and her H1 extension also approved couple of times before. The reason why we had withdraw her previous approved H1 is my wife consultancy applied for H1 extension 2nd time through her client 'A' and then she had to move to different client 'B' but unfortunately USCIS went to client 'A' location and inquiring about her but by that time she moved to client 'B' location. Of course it’s her employer mistake as they didn't apply for LCA. Her employer replied to RFE but since she went to INDIA during that time as mentioned above was not able to attend the interview due to RFE and had to come back to US on H4.

My question is -> even though she worked on H1 for 4 years before and then withdrawn, now does she have to wait until next year quota for COS from H4 to H1(Change Of Status)?

[JoeF]

So, why didn't you mention this in your first post?

Answers can only be as good as the information provided.

[kiran234]

Yes, If she already have an approved H1B and did not used the maximum 6 years allowed per cap counted H1B.

The law has a few built-in exceptions to the H1B cap. First, if one was approved for an H1B at any time previously, s/he is generally treated as having received a new H1B and a new company would only be asking for USCIS to grant permission for the employer to use the balance of time out of the total of six (6) years generally available.

Please check the below article

http://www.murthy.com/2012/03/26/abcs-of-h1bs-getting-back-to-the-basics-of-the-h1b-visa/

[JoeF]

Please provide all the necessary information, like when your wife had an H1.

Piecemeal stuff doesn't cut it.