H1B transfer got RFE - very urgent

[ladsonlin]

Hi All,

 

I have the below scenario, please help me understand it. Below are the entry and exit dates from USA,

 

1. Entered Feb 2008 with X Company

    Exited Nov 2008 with X Company

    Stayed out of the country from Nov 2008 to Sep 2010 as X company got bankrupted.

 

2. Entered Oct 2010 with Y Company and they filed my HIB as new employee, Company Y filed my GC and got my 140 approved. Later they revoked my 140 after I left the company.

 

3. Got transferred to company Z as full time employee in July 2013 and got my extension till July 2016. Got 3yr extension as I had approved 140 with Company Y.

 

4. I have filed my perm as future employee with company W in Sep 2015 thinking my 6 year term will end Oct 2016.

 

5. Also I have filed my H1B transfer with company W and received a RFE saying my 6yr is completing on Dec 2015, looks like they are counting my 2008 stay.

 

Can you please let me know if my 6 yr H1B term will expire Oct 2016 or will the 10 months which I stayed in 2008 will get added to this 6 yr term. 

 

My LCA and I129 docs for H1B from 2010 filling are done as new employee.

I checked the I129 and found the below info,

 

-- Is the beneficiary of this petition an alien subject to the Guam-CNMI cap exemption under Public Law 110-2297? - Marked as NO

 

-- If the petition is to request a change of employer, was the beneficiary of this petition an alien who previously worked as an IT-IB while subject to the Guam-CNMI cap exemption under Public Law 110-229? - Marked as NO

 

So does that mean I was under cap when filed in 2010 and the 2008 term will not be added to the new H1B filing ... correct?

 

Is it possible that if we give correct explanation and documentation I can convince USCIS that they need to correct it. And does human errors happen with USCIS or is it very tough to fight with them.

 

-Regards

[aasifk]

The 10 months which you stayed in 2008 will be added. since you were on H1B status  for 10 months (1st time) + 5 years and 3 months (2nd time) = 6 years and 1 month total.

 

You were under cap when filed in 2010, it was a new petition but still the 10 months you spend would be accounted;

 

Guam-CNMI Cap exemption under public law 110-229 Should have been Marked as "Yes" .

 

This is just my advice, not legal.  Please confirm with an immigration lawyer

[ladsonlin]

Hi, Thanks for the immediate response,

As per the the 2010 I129 application below are the Numerical Limitation Exemption Information mentioned in the form and for all the below points they mentioned it as No,
 

Part C.  Nurerical Limitation Exemption Information

 

1. Yes  or  No  --  Are you an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C section 1001(a)?

 

2. Yes  or  No  --  Are you a nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C section 1001(a)?

 

3. Yes  or  No  --  Are you a nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)©?

 

4. Yes  or  No  --  Is the beneficiary of this petition a J-1 non-immigrant alien who received a waiver of the two-year foreign residency requirement described in section 214(1)(1)(B)or © of the Act?

 

5. Yes  or  No  --  Has the beneficiary of this petition been previously granted status as an H-1B non-immigrant in the past 6 years and not left the United Dtates for more than one year after attaining such status?

 

6. Yes  or  No  --  If the petition os to request a change of employer, did the beneficiary previously work as an H-1B for an institution of higher education, an entity related to or affiliated with an institution of higher education, or a nonprofit research organization or governmental research institution defined in question 1,2 and 3of Part C of this form?

 

7. Yes  or  No  --  Has the beneficiary of this petition earned a master's or higher degree from a U.S. institution of higher education, as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a)?

 

8. Yes  or  No  --  Is the beneficiary of this petition an alien subject to the Guam-CNMI cap exemption under Public Law 110-2297?

 

9. Yes  or  No  --  If the petition is to request a change of employer, was the beneficiary of this petition an alien who previously worked as an IT-IB while subject to the Guam-CNMI cap exemption under Public Law 110-229?

 

Please suggest if the filing in 2010 was on Cap or not.