L2EADGC Posted April 19, 2013 Report Posted April 19, 2013 I got my H1B petition approved and was valid from Oct 1st 2012 , but I never used it as I was on L1A. Now I'm in USA as a dependent to my spouse on H4 and my previous client company still offering me my old job, can I use my previous H1B and apply for a COS. I want to take this route as the quota for this year has already over. Attorney's, please let me know.
Attorney_23 Posted April 19, 2013 Report Posted April 19, 2013 The USCIS generally only considers an H1B applicant counted against the numerical H1B cap if s/he is physically present in the U.S. when a change of status to H1B takes effect, or if s/he is issued an H1B visa from a U.S. consulate abroad. Absent one of the above, the USCIS may deny a new H1B petition filed as cap exempt. However, we have seen situations where USCIS has approved the H1B petition as cap exempt after disclosing that no visa was issued.
0407 Posted April 19, 2013 Report Posted April 19, 2013 Hi Attorney_23 I have a related question. Some people say that you are cap exempted as long as there is at least one approved petition on the file. Does it mean that say someone had approved H1B ( say it was a COS and person was in US when COS got approved) which later got withdrawn by the employer and if this were the only H1B petition he ever had, he is no longer cap counted?
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