Applying for H1 Transfer while the H1B petition was intended for revoke

[vsk.engg]

Hi,

I had applied for VISA in Apr 2014 and petition was approved in Sept 2014. When I went for the stamping, they issued 221g. Recently this month, I got a mail from the consulate as below.

Dear Mr. xxxxx,

Based upon the documents you have submitted to the U.S. Consulate General Toronto and the information elicited in your interview with a U.S. Consular Officer, we are not able to issue you an H-1B temporary work visa.

In accordance with U.S. law and Department of State guidelines, action on your case has been suspended under section 221(g) of the Immigration and Nationality Act (INA), as amended. The I-129 Petition for a Nonimmigrant Worker filed on your behalf will be returned to the U.S. Citizenship and Immigration Services (USCIS) with a memorandum explaining the facts of your case as presented to us at the time of your interview.

For further information regarding the status of your petition, you may contact the U.S. Department of Homeland Security (www.dhs.gov).


Also, I got a notice from the USCIS that they had received my document back for re-verification or re-validation. As I understood from my lawyre, if the USCIS decides to issue the visa, it will issue. Other wise if USCIS decides to revoke the petition , it will revoke my petition and I would be subject to the quota again.

My queries here are ,

1. Can I apply for H1 Transfer now, irrespective of the status of the current H1B petition ?
2. If I can apply , do I need to apply for H1 transfer petition before the USCIS revokes the petition ?
2. If the USCIS revokes the petition, can I apply for the H1 transfer under cap exempt ?
3. Usually USCIS takes some time(about 2 months) any how for deciding on my petition, would it be beneficial if I apply for premium H1 Transfer so that I can get stamped(may be with in 20-30 days) ,before USCIS conclues a decision on my previous H1b petition ?


Appreciate your valuable inputs.


Thanks.

[shervin143]

1. Can I apply for H1 Transfer now, irrespective of the status of the current H1B petition ?
>>> USCIS has made some recent changes to the the transfer process. Since your H1B is filed under a new CAP, you cannot transfer until the petition becomes effective, which is Oct 1st.

2. If I can apply , do I need to apply for H1 transfer petition before the USCIS revokes the petition ?
>>> Read above answer.

2. If the USCIS revokes the petition, can I apply for the H1 transfer under cap exempt ?
>>> Unfortunately, NO.

3. Usually USCIS takes some time(about 2 months) any how for deciding on my petition, would it be beneficial if I apply for premium H1 Transfer so that I can get stamped(may be with in 20-30 days) ,before USCIS conclues a decision on my previous H1b petition ?
>>> You can try to transfer post Oct 1st. If yor petition is revoked prior to that, there is nothing much you could do and the employer who files the transfer will lose the money spent on initiating the H1B petition.

[vsk.engg]

Thanks for the reply. My H1B was applied in the year of 2014, i.e as per your answer to the question 1, I can apply for the H1 transfer as the oct 1st,2014 was already over. So now my only question is that , do I need to apply for H1 transfer as soon as possible(with premium) , so that my transfer petition will be valid just before the USCIS revokes the petition ? Because once USCIS revokes the petition, there is nothing we can do.


Also shervin, as per the below post , you were saying that H1 can be transferred even if the USCIS revokes the petition. I may be misunderstanding some thing around here. Could you please advise me on this.

http://www.immihelp.com/forum/showthread.php/191602-H1-Transfer-while-the-consular-is-notifying-the-USCIS-to-revoke-the-petition

Thanks

1. Can I apply for H1 Transfer now, irrespective of the status of the current H1B petition ?
>>> USCIS has made some recent changes to the the transfer process. Since your H1B is filed under a new CAP, you cannot transfer until the petition becomes effective, which is Oct 1st.

2. If I can apply , do I need to apply for H1 transfer petition before the USCIS revokes the petition ?
>>> Read above answer.

2. If the USCIS revokes the petition, can I apply for the H1 transfer under cap exempt ?
>>> Unfortunately, NO.

3. Usually USCIS takes some time(about 2 months) any how for deciding on my petition, would it be beneficial if I apply for premium H1 Transfer so that I can get stamped(may be with in 20-30 days) ,before USCIS conclues a decision on my previous H1b petition ?
>>> You can try to transfer post Oct 1st. If yor petition is revoked prior to that, there is nothing much you could do and the employer who files the transfer will lose the money spent on initiating the H1B petition.

[shervin143]

If a particular employer's petition is revoked, it means that you just cannot work for that specific employer. The CAP is still valid and it can be used to file a new petition with another employer without having to go through quota again.

Thanks for the reply. My H1B was applied in the year of 2014, i.e as per your answer to the question 1, I can apply for the H1 transfer as the oct 1st,2014 was already over. So now my only question is that , do I need to apply for H1 transfer as soon as possible(with premium) , so that my transfer petition will be valid just before the USCIS revokes the petition ? Because once USCIS revokes the petition, there is nothing we can do.


Also shervin, as per the below post , you were saying that H1 can be transferred even if the USCIS revokes the petition. I may be misunderstanding some thing around here. Could you please advise me on this.

http://www.immihelp.com/forum/showthread.php/191602-H1-Transfer-while-the-consular-is-notifying-the-USCIS-to-revoke-the-petition

Thanks

[vsk.engg]

Thats great. Thanks alot for ur inputs. But I am confused with the below.


2. If the USCIS revokes the petition, can I apply for the H1 transfer under cap exempt ?
>>> Unfortunately, NO.



What does this mean ? If the USCIS revokes the petition made by my current employer , then can't I apply for a CAP exempt H1B petition? Even the lawyer who made previous petition is saying that if the USCIS revokes the petition, the only way is to refile and I would be subjected to H1B quota again.

Please clarify regarding this. Thanks again for your time and inputs.


Thanks.

If a particular employer's petition is revoked, it means that you just cannot work for that specific employer. The CAP is still valid and it can be used to file a new petition with another employer without having to go through quota again.

[shervin143]

The attorney is right. If the employer revokes the petition, then only the employer's petition is revoked and the CAP will be valid to file a transfer. If USCIS revokes a petition that is filed under a brand new CAP, then both the petition as well as the CAP will revoked and you will need to go through quota again. This doesn't apply to a petition that is transferred or extended. This only applies to a fresh H1B petition that is filed against quota.

Thats great. Thanks alot for ur inputs. But I am confused with the below.


2. If the USCIS revokes the petition, can I apply for the H1 transfer under cap exempt ?
>>> Unfortunately, NO.



What does this mean ? If the USCIS revokes the petition made by my current employer , then can't I apply for a CAP exempt H1B petition? Even the lawyer who made previous petition is saying that if the USCIS revokes the petition, the only way is to refile and I would be subjected to H1B quota again.

Please clarify regarding this. Thanks again for your time and inputs.


Thanks.

[vsk.engg]

Ohhh.. In that case, if I apply for a new CAP exempt petition before the USCIS takes a decision, would it work ? Like , if the USCIS takes about one month of time to decide on my H1B case , and in the mean while I file a new CAP exempt H1B petition from a new employer using premium which might take about 2-4 weeks of time in which I can complete my stamping as well i.e by the time USCIS concludes a decision, would that be possible ?


Thanks

The attorney is right. If the employer revokes the petition, then only the employer's petition is revoked and the CAP will be valid to file a transfer. If USCIS revokes a petition that is filed under a brand new CAP, then both the petition as well as the CAP will revoked and you will need to go through quota again. This doesn't apply to a petition that is transferred or extended. This only applies to a fresh H1B petition that is filed against quota.

[shervin143]

You can certainly try that option. But it is a very grey area and it is very hard to predict what the outcome of the transfer will be. If you can find an employer who is willing o file the transfer, I would suggest that you give it a try. It may work.

Ohhh.. In that case, if I apply for a new CAP exempt petition before the USCIS takes a decision, would it work ? Like , if the USCIS takes about one month of time to decide on my H1B case , and in the mean while I file a new CAP exempt H1B petition from a new employer using premium which might take about 2-4 weeks of time in which I can complete my stamping as well i.e by the time USCIS concludes a decision, would that be possible ?


Thanks

[vsk.engg]

Well, Yeah.My current organisation(giant organisation) that I am working is ready for the H1 transfer. and I heard from one of the employers that

1. I can file the CAP exempt H1B petition and it can get the approvals, but it could be an issue at the time of visa stamping. VISA officer may ask to wait until the previous 221g to be cleared.

2.Also that employer is saying that VISA has to be stamped from the employer who had initiated my H1B first.
Please suggest me if that is how it works ?

3.Also, as per the mail from the consulate , I understand that 221g processing from their end is over and my case is no more under 221g processing, rather it is under USCIS for post-decision activity. Is my understanding correct ?


Thanks for your time and valuable inputs.


Thanks.

You can certainly try that option. But it is a very grey area and it is very hard to predict what the outcome of the transfer will be. If you can find an employer who is willing o file the transfer, I would suggest that you give it a try. It may work.

[shervin143]

1. I can file the CAP exempt H1B petition and it can get the approvals, but it could be an issue at the time of visa stamping. VISA officer may ask to wait until the previous 221g to be cleared.
>>> Well, you can always withdraw the previous visa application. You will need to mention that as visa rejection in any DS160 that you will file going forward.

2.Also that employer is saying that VISA has to be stamped from the employer who had initiated my H1B first.
Please suggest me if that is how it works ?
>>> That is not true. If the transfer gets approved, you can appear for the visa interview again by filling a new DS160 using the new employer's approval notice. If there is any pending visa at that time, you will either need to wait for a decision to be made by the consulate or withdraw that visa application before you file a new one.

3.Also, as per the mail from the consulate , I understand that 221g processing from their end is over and my case is no more under 221g processing, rather it is under USCIS for post-decision activity. Is my understanding correct ?
>>> That is correct. It means, they have rejected your visa and sent the approval notice back to USCIS to revoke it. If you already have your passport with you, then you are good to file a new visa application any time.

[vsk.engg]

Thanks for your inputs. With this discussion I understand that , I can file a new CAP exempt H1B petition from a new employer, and if it can be completed with the visa processing by the time USCIS takes a decision on my previous petition, I would be good.

As per the point 2, If there is any pending visa at that time, what is meant by that ?

1. I can file the CAP exempt H1B petition and it can get the approvals, but it could be an issue at the time of visa stamping. VISA officer may ask to wait until the previous 221g to be cleared.
>>> Well, you can always withdraw the previous visa application. You will need to mention that as visa rejection in any DS160 that you will file going forward.

2.Also that employer is saying that VISA has to be stamped from the employer who had initiated my H1B first.
Please suggest me if that is how it works ?
>>> That is not true. If the transfer gets approved, you can appear for the visa interview again by filling a new DS160 using the new employer's approval notice. If there is any pending visa at that time, you will either need to wait for a decision to be made by the consulate or withdraw that visa application before you file a new one.

3.Also, as per the mail from the consulate , I understand that 221g processing from their end is over and my case is no more under 221g processing, rather it is under USCIS for post-decision activity. Is my understanding correct ?
>>> That is correct. It means, they have rejected your visa and sent the approval notice back to USCIS to revoke it. If you already have your passport with you, then you are good to file a new visa application any time.

[shervin143]

I mean, if you have already applied for a visa any U.S consulate and if you have not got a decision on that and if you have received a 221g for additional admin processing, then you will either need to wait for the 221g to get cleared to get a decision on your case or will need to withdraw the previous visa application before you can file a new visa application.

Thanks for your inputs. With this discussion I understand that , I can file a new CAP exempt H1B petition from a new employer, and if it can be completed with the visa processing by the time USCIS takes a decision on my previous petition, I would be good.

As per the point 2, If there is any pending visa at that time, what is meant by that ?

[vsk.engg]

Oh.. So I need to with draw the visa application that I applied for the visa stamping for which 221g was issued before applying for the new visa application for the new petition. I couldn't find on the portal , how to with draw the visa application. Could you please let me know how I can with draw the visa application.

Also I heard from some one that , applying for a new petition when the case is with USCIS for final decision may not be legal or it may affect at the time of stamping. Is that so ? I m really bothered about this and how it works. Kindly help.


Thanks.

I mean, if you have already applied for a visa any U.S consulate and if you have not got a decision on that and if you have received a 221g for additional admin processing, then you will either need to wait for the 221g to get cleared to get a decision on your case or will need to withdraw the previous visa application before you can file a new visa application.

[shervin143]

Oh.. So I need to with draw the visa application that I applied for the visa stamping for which 221g was issued before applying for the new visa application for the new petition. I couldn't find on the portal , how to with draw the visa application. Could you please let me know how I can with draw the visa application.
>>> You will need to send a letter to the consulate that issued you the 221g by attaching a copy of your passport, H1B approval and 221g form and clearly mention that you would like to withdraw the application.

Also I heard from some one that , applying for a new petition when the case is with USCIS for final decision may not be legal or it may affect at the time of stamping. Is that so ? I m really bothered about this and how it works. Kindly help.
>>> Not if the employer is different.

[vsk.engg]

Oh. thats great. But my attorney lawyer is saying that we can't. I may be misundestanding some thing there, so I just copy pasting our conversation. Please help me.


Me : I just want to know some thing regarding this. Could you please clarify? In this situation while the USCIS has to take a call on my case, in the mean while can I apply for a new CAP exempt H1B petition using it?

Reply from the attorney : Unfortunately, no. CIS won’t adjudicate any newly filed petition until the existing petition is addressed.

Does she mean that we cant file a new petition only from the same employer ? attorney was from the employer who petitioned my first petition.


Thanks.

Oh.. So I need to with draw the visa application that I applied for the visa stamping for which 221g was issued before applying for the new visa application for the new petition. I couldn't find on the portal , how to with draw the visa application. Could you please let me know how I can with draw the visa application.
>>> You will need to send a letter to the consulate that issued you the 221g by attaching a copy of your passport, H1B approval and 221g form and clearly mention that you would like to withdraw the application.

Also I heard from some one that , applying for a new petition when the case is with USCIS for final decision may not be legal or it may affect at the time of stamping. Is that so ? I m really bothered about this and how it works. Kindly help.
>>> Not of the employer is different.