H4 to H1: COS issue

[lathaa_srh]

I entered US on H4 on Sep 2007(H4 for 6 months and expiry date feb 2008). while I was in india, my husband filed for my H1 and got selected in the lottery and got approved as well. Again, I got my H4 extension in Feb 2008 for another one year while in US. I went for a vacation to India for one month and came back in Mar 2008. Then I (my employer) applied for COS in March 2008 and got a reply stating that H1 status is invalid now (I am not aware that COS will affect my H1 and the employer have not told anything about this before applying COS or H4 extension).

1. Can I ask for the Approved petition I-797 from my employer?

2. Does the original I-797 has to be included for COS?

3. Can I apply for my new H1 using the old quota? If yes, when can I apply?

[txh1b]

Your post is confusing.

You need to provide prrof of prior cap count while applying for a H1b COS from H4. This is what I could get from your post.

[lathaa_srh]

my husband applied for my H1 in april 2007.
my employer applied for COS from H4 to H1 on Mar 2008. My employer is saying that your H1 status is invalid now because of the H4 extension (along with my husband's H1) in Feb 2008 in US. I need to know the following:


1. Even my H1 is invalid, Can I ask for the Approved petition I-797 from my employer?

2. Does the original I-797 has to be included for COS? (My employer is not giving my I 797 and told me that he has sent the original for COS filing)

3. Can I apply for my new H1 using the old quota? If yes, when can I apply?

Pls let me know what more details i need to provide.

[txh1b]

1. H1 is not invalid. A copy of I797 is good for a new employer to get you back on H1b.

2. No, original is not needed for a COS. Employer is scared you will move to a new employer. You can still use just the receipt number to prove past approval of H1b and claim cap exemption.

3. New cap subject H1b is not needed. You care already cap exempt as you have been counted. You can apply for a new H1b anytime now if you can provide proof of cap count i.e copy of I797.

[lathaa_srh]

---------------------------------------------Country living in.
March 2007 ----- H1 applied --------------- India
June 2007 ----- H1 approved --------------- India
Sep 2007 ----- Entered US on H4 ---------- US
Feb 2008 ----- Applied for H4 extension ----- US
Mar 2008 ----- Applied COS - H4 to H1 ----- US (got reply
stating H1B petition had become automatically invalid/amended in Feb
2008)

Note: Extending H4 while in US made my H1B petiton automatically
invalid/amended.

Can I still go to a new employer (or the original employer/petitioner)
with that invalidated petition and request to apply for new H1B
claiming cap exemption?

[txh1b]

Where/Who did you get the reply for amendment? USCIS? Did you ever apply for a H1b visa that was in admin processing?

Did your employer revoke the H1b? If so, just an amendment request will not suffice.

[lathaa_srh]

My employer told me that USCIS returned/denied the H4 to H1B COS request back to them stating that the H1B/I-797 was an invalid one and hence cannot process it.

[txh1b]

Do you trust this employer? Can you ask for a copy of the notice from USCIS. There were some bills introduced to recapture issued but unused H1bs but they never made past the senate.

What you are saying is news to me. Either the employer is lying or USCIS has made an error from what I know. H1bs do not expire if unused or one changes to another status.

[hitchhiker]

Did you get any more updates? What happened to your H1B? Is it invalid because of your H4 extension. Please reply, even my case is the case. I applied for H1b when I was in India. Now I have got an approval with I-797B. During this process I moved from India to US on H4. Now my husband has applied for extension of H4. Will that affect my H1B approval?