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H4-->H1 with H1B expired of 2012

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  • H4-->H1 with H1B expired of 2012

    Hello All,

    1. My employer from India applied H1B visa in Mar-2012 and got approved. Approval petition had valid date from Oct-2012 to Mar-2013.
    2. I did stamping approved in Feb-2013 and visa valid only till Mar-2013 but never traveled to US and visa got expired.
    3. In June 2013 I have traveled to US on my wife's H4 dependent visa. Valid I-94 till Sep-2015.
    4. I found one employer (consultant), who had filed fresh petition for H4 -->H1 conversion in premium process.Petition filed by employer showing client as in-house project. After 5 days of petition filing got an RFE for client position detail and evidence. Employer replied for RFE with documents and details summary prepared by Attorney. This petition was denied by USCIS on 20September, 2013.

    I have below few questions raising up to go ahead with this situation.

    1. I came to know that as I have never utilized my first approved petition so I can never use the allocated slot in future. Is this correct?
    2. Is my CAP slot still valid to file a fresh petition in CAP exempt anytime?
    3. My consultant told me that as per policy an employer can file fresh petition which will be CAP exempt. In this scenario will this new petition has any impact of previous petition which got denied. Any history will be taken into consideration by USCIS?
    4. New employer will file petition on the basis of original CAP/petition filed by previous Indian employer. Will Indian employer has the rights to cancel this CAP slot or petition in any situation?

  • #2
    Originally posted by manish0817 View Post
    Hello All,

    1. My employer from India applied H1B visa in Mar-2012 and got approved. Approval petition had valid date from Oct-2012 to Mar-2013.
    2. I did stamping approved in Feb-2013 and visa valid only till Mar-2013 but never traveled to US and visa got expired.
    3. In June 2013 I have traveled to US on my wife's H4 dependent visa. Valid I-94 till Sep-2015.
    4. I found one employer (consultant), who had filed fresh petition for H4 -->H1 conversion in premium process.Petition filed by employer showing client as in-house project. After 5 days of petition filing got an RFE for client position detail and evidence. Employer replied for RFE with documents and details summary prepared by Attorney. This petition was denied by USCIS on 20September, 2013.

    I have below few questions raising up to go ahead with this situation.

    1. I came to know that as I have never utilized my first approved petition so I can never use the allocated slot in future. Is this correct?
    2. Is my CAP slot still valid to file a fresh petition in CAP exempt anytime?
    3. My consultant told me that as per policy an employer can file fresh petition which will be CAP exempt. In this scenario will this new petition has any impact of previous petition which got denied. Any history will be taken into consideration by USCIS?
    4. New employer will file petition on the basis of original CAP/petition filed by previous Indian employer. Will Indian employer has the rights to cancel this CAP slot or petition in any situation?
    Hello, Manish.

    First things first, these consultancies are not allowed to have in-house visas, and they know it. They still file for visas as the consultant most of the times pays for it and these consultancies stand to lose little in case of a visa decline. If the visa gets approved (Accidentally) they laugh all the way to the Bank.

    1) You are allowed to use your petition in the future. Till 2018, you are good to file a petition to have this visa revived.
    2) Yes. You will be cap exempt.
    3) Everything gets recorded in their (USCIS) systems but do not worry about the past. If your paperwork at the time of filing is good, you will always have a good case despite a not so good history. Hypothetically: I have an H1B filed through a consultancy for an in house project and it gets declined. I come to India and 2 years later get a job with Microsoft in India - after 6 months, Microsoft decides to send me to US on H1B. Ofcourse, now i have a very strong case (as Microsoft is sponsoring me) despite my past rejection.
    4) No employer can cancel the visa. The visa belongs to you. They can revoke it and they are out of the equation, but the visa exists in the system and you are good to revive it anytime within 6 years of visa being issued to you.

    Hope this helps.

    Wishing you luck.

    Cheers,
    These are my personal thoughts. I am not a professional.

    Wishing you luck.

    Comment


    • #3
      H4-->H1 with H1B expired of 2012 - Thanks

      Originally posted by Nattybone View Post
      Hello, Manish.

      First things first, these consultancies are not allowed to have in-house visas, and they know it. They still file for visas as the consultant most of the times pays for it and these consultancies stand to lose little in case of a visa decline. If the visa gets approved (Accidentally) they laugh all the way to the Bank.

      1) You are allowed to use your petition in the future. Till 2018, you are good to file a petition to have this visa revived.
      2) Yes. You will be cap exempt.
      3) Everything gets recorded in their (USCIS) systems but do not worry about the past. If your paperwork at the time of filing is good, you will always have a good case despite a not so good history. Hypothetically: I have an H1B filed through a consultancy for an in house project and it gets declined. I come to India and 2 years later get a job with Microsoft in India - after 6 months, Microsoft decides to send me to US on H1B. Ofcourse, now i have a very strong case (as Microsoft is sponsoring me) despite my past rejection.
      4) No employer can cancel the visa. The visa belongs to you. They can revoke it and they are out of the equation, but the visa exists in the system and you are good to revive it anytime within 6 years of visa being issued to you.

      Hope this helps.

      Wishing you luck.

      Cheers,
      Hello Natty,

      Really it's great help to me, thanks you so much for this reply.

      I have simple basic question
      1. Petition no XYZ mention in I-797 approval notice has validity from Oct-2012 to Mar-2013, Presently petition is invalid but this same petition is always used for reference to show while filing new I-129 petition as CAP exempt.
      2. You said above employer can revoke it, what i understand is 'an employer can revoke only a petition' even though the same petition is mentioned in your I-797 is still valid to used in CAP exempt.

      Both above question looks similar but still i feel in 1st question CAP exempt using expired petition while in 2nd question CAP exempt using revoke petition.


      Thanks

      Comment


      • #4
        Originally posted by manish0817 View Post
        Hello Natty,

        Really it's great help to me, thanks you so much for this reply.

        I have simple basic question
        1. Petition no XYZ mention in I-797 approval notice has validity from Oct-2012 to Mar-2013, Presently petition is invalid but this same petition is always used for reference to show while filing new I-129 petition as CAP exempt.
        2. You said above employer can revoke it, what i understand is 'an employer can revoke only a petition' even though the same petition is mentioned in your I-797 is still valid to used in CAP exempt.

        Both above question looks similar but still i feel in 1st question CAP exempt using expired petition while in 2nd question CAP exempt using revoke petition.


        Thanks
        Hello, Manish.

        I did not understand your question, i am sorry.

        There can be numerous petitions. As long as they tie up to your H1B visa, they can have any reference number. Once H1B is approved in the system (you become cap exempt for the next 6 years, should your visa go out of status and you need to revive it).

        An employer's revocation does not lead to your H1B getting deleted from the system. They only cancel the petition that they are sponsoring. You find a new employer and file afresh - for the visa which is 'Yours' in the system.

        I hope this helps.

        Cheers,
        These are my personal thoughts. I am not a professional.

        Wishing you luck.

        Comment


        • #5
          H4-->H1 with Expired H1B of 2012 Thanks

          Originally posted by Nattybone View Post
          Hello, Manish.

          I did not understand your question, i am sorry.

          There can be numerous petitions. As long as they tie up to your H1B visa, they can have any reference number. Once H1B is approved in the system (you become cap exempt for the next 6 years, should your visa go out of status and you need to revive it).

          An employer's revocation does not lead to your H1B getting deleted from the system. They only cancel the petition that they are sponsoring. You find a new employer and file afresh - for the visa which is 'Yours' in the system.

          I hope this helps.

          Cheers,
          Hello Natty,

          Thanks again.
          Little more to know while applying new petition I-129 has option to select CAP exempt, do we need to give 1st approval I-797 petition no as reference OR beneficiary details in USCIS system is enough to get approved H1B details?
          Overall my doubt is how USCIS comes to about H1B approval in their system through beneficiary details or something else?

          Comment


          • #6
            Originally posted by manish0817 View Post
            Hello Natty,

            Thanks again.
            Little more to know while applying new petition I-129 has option to select CAP exempt, do we need to give 1st approval I-797 petition no as reference OR beneficiary details in USCIS system is enough to get approved H1B details?
            Overall my doubt is how USCIS comes to about H1B approval in their system through beneficiary details or something else?
            Hello, Manish.

            I am not certain on this, but approved petition number sounds like a more reliable source than beneficiary details. As the number will be unique.

            I hope this helps.

            Wishing you luck.

            Cheers,
            These are my personal thoughts. I am not a professional.

            Wishing you luck.

            Comment


            • #7
              H4-->H1 with H1B expired of 2012

              Originally posted by Nattybone View Post
              Hello, Manish.

              I am not certain on this, but approved petition number sounds like a more reliable source than beneficiary details. As the number will be unique.

              I hope this helps.

              Wishing you luck.

              Cheers,
              Hello Natty,
              Thanks for your responses.
              From our past discussion, I got clear understanding that, once H1B is approved then beneficiary is eligible to file a new petition in cap exempt by any employer in all the below situations:
              1. Old petition is revoked/expired.
              2. Changing the employer.
              3. Never traveled to US before or never worked in US and filing new petition again.
              4. If visa is granted in past 6 years.

              In my case,
              1. I got approved H1B in cap cycle 2012 from company A and never traveled to US, petition got expired.
              2. I traveled to US on dependent H4 visa and company B filed my new petition in cap exempt which was denied.
              3. Planning to go back to India and join company A to resume my work and make efforts to file new petition in cap exempt thru company A.

              My further questions are:
              1. Legally company A can file new petition in cap exempt, but will they come to know that in between I filed one petition with company B and it got denied?
              2. Will USCIS send some RFE query stating about beneficiary recent rejection?
              3. As I never traveled to US on my 1st petition, applying new petition in cap exempt, will USCIS consider below point while approving new petition in cap exempt:

              "The applicant has already been counted in the quota once in past 6 years. So in order to approve any such petition USCIS considers two things:
              1. Did the applicant maintained the status before applying for the petition.
              2. Will the applicant be able to maintain the status if the petition is approved."


              If 1st point is taken into consideration then my new petition have less chances of approval as I never maintained my earlier H1B status in US.


              Thanks,
              Manish

              Comment

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