H1B transfer with no entering US, no working

[yshpakov]

Hi

I have a problem. And I need your help.
I have H1B petition approved. I have H1B visa issued.
Now I'm in Russia.
I was going to enter US for working for my employer on April 1st, 2012.
Thare were some probems with my employer and it closed my job position in March.

I had a job interview with a new employer and got an offer.
that I'm not a subject of cap and they can make H1B transfer and I can start right after the new petition will be filed.

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Q: Can an H1b that was approved and never used be transferred from outside the country?
A: A transfer is nothing but a new H1b application that is not subject to the cap. If you have proof of prior approval (like the copy of I797 or a receipt number), a new employer can transfer the H1b even if you have not entered into the USA.
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But my new employer's lawyer said that since I didn't enter US and didn't start working for my old employer -- I have to wait until October and only since October 1st I can start woring for my new employer -- so I'm a subject of cap. She quoted:

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Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.
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Please, could anyone give me the reference supporting these Question and Answer?
I really need to change this lawyer's mind!

Thank you!


Best regards,
Yury Shpakov

[shervin143]

But my new employer's lawyer said that since I didn't enter US and didn't start working for my old employer -- I have to wait until October and only since October 1st I can start woring for my new employer -- so I'm a subject of cap. She quoted:
>>> That is not true. The lawyer doesn't seem to know what she is talking about. Search for the supporting documents in uscis.gov. Or consult a good immigration attorney on your own who can provide you the required documentation evedence.

[yshpakov]

Thank you so much for words of suport

But why do you think she (lawyer) is incorrect? Are you sure you are right? Can you prove?
I was looking for the supporting info at uscis.gov but I didn't find direct confirmation.

Concerning Form I-129.

There is a list of options only when I'm not a subject of cap (cap exempt) (page 18-19).
That is the key point!
Only 2 options of all can be suitable in my case:
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e. The petitioner is requesting an ammendment to or extension of stay for the beneficiary's current H-1B classification.
...
g. The beneficiary of this petition: (1) was previously granted status as an H-1B nonimmigrant in the past 6 years, (2) is applaying from abroad to reclaim the remaining portion of the six years, or (3) is seeking a 7th year extension based upon AC21 and the beneficiary's previous H-1B petitioner/employer was not a CAP exempt organization as defined above in a., b., and c.
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What fits me: option 'e.' or option 'g.(1)'?
I'm not sure about both of them.
Option e. Amendment is material changes in the terms and conditions of employment at the same employer. Correct?
Option g. (1) I gain H1B status not with the petition approved, but only when I enter US and start working for the petitioner. So now I don't have H1B status. Yes?
So option g.(1) doesn't match my case. Right?

So e. or g.(1)? Have idea?


Thanks a lot!


Best reagrds,
Yury Shpakov

[shervin143]

Well, there is no compelling reason for me to prove anything to you. That is why I asked you to consult a good immigration attorney. The information people post here are based on their experiences. Whether to take it or to ignore it is totally up to you. If you are in doubt, you should always consult an attorney. There are plenty of cases similar to yours. Search immihelp find those posts. Any good immigration attorney will be able to get your petition approved based on the previously approved H1B petition (previous CAP).