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Using Old(expired) H1 Petition with unused H1 time to transfer to new employer

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  • Using Old(expired) H1 Petition with unused H1 time to transfer to new employer

    Hi,
    Here is my case

    With Employer A
    H1B Application was filed and approved in April 2007 (first time H1 ever had lottery),
    H1B Stamped 26-SEPT-2007 with validity till 23-SEP-2010

    H1B Petition (I-797) expiry date was 23-SEP-2010

    I entered US on this H1B in Jan 2008 and returned back by July 2009 (18 months) 1.5 years


    Now I came across an Employer B who has checked with his Law firm and he confirms that even though it has been more than 6 years since I was last in the US, but he can still use my old expired petition and file a new petition (also transfer it to himself in the process) and use the remaining 4.5 years.

    I did my research and I told him, that the petition can be transferred only during the 6 years of the validity of the petition (in my case 23-SEP-2013) but he insists that he has in the past got H1B petitions re-filed and transferred of people who had an H1B but never used the petition, never got stamping done and never traveled to US. He was able to use their entire 6 years.

    When I spoke to a few lawyers they confirmed it has been more than 6 years I was in the US last. If there was any chance, it would have been before Jul 2015 (6 years from July 2009 when I left the US)/
    Even then, they say you can definitely file the petition but there are very high chances of denial.

    hence I wish to taken an opinion from the experts here if it is even possible to use the 4.5 years from the old petition and file a new one which is Cap exempt?

    please let me know.

    Thanks

  • #2
    Originally posted by OldH1 View Post
    Hi,
    Here is my case

    With Employer A
    H1B Application was filed and approved in April 2007 (first time H1 ever had lottery),
    H1B Stamped 26-SEPT-2007 with validity till 23-SEP-2010

    H1B Petition (I-797) expiry date was 23-SEP-2010

    I entered US on this H1B in Jan 2008 and returned back by July 2009 (18 months) 1.5 years


    Now I came across an Employer B who has checked with his Law firm and he confirms that even though it has been more than 6 years since I was last in the US, but he can still use my old expired petition and file a new petition (also transfer it to himself in the process) and use the remaining 4.5 years.

    I did my research and I told him, that the petition can be transferred only during the 6 years of the validity of the petition (in my case 23-SEP-2013) but he insists that he has in the past got H1B petitions re-filed and transferred of people who had an H1B but never used the petition, never got stamping done and never traveled to US. He was able to use their entire 6 years.

    When I spoke to a few lawyers they confirmed it has been more than 6 years I was in the US last. If there was any chance, it would have been before Jul 2015 (6 years from July 2009 when I left the US)/
    Even then, they say you can definitely file the petition but there are very high chances of denial.

    hence I wish to taken an opinion from the experts here if it is even possible to use the 4.5 years from the old petition and file a new one which is Cap exempt?

    please let me know.

    Thanks
    I dont think so. There are basically three conditions on which a H1 can be cap exempt.
    1. If one was cap counted in last 6 Years , since you were cap counted 2008, its over 6 years back.
    2. Within 6 Years from last held H1 status, you were last on H1 in July 2009, which again is over 6 Years back.
    3. You have a PERM filed over 365 days ago or an I140 which is approved, neither is which you seem to be having.

    The reason why the employer may be willing to file the petition is due to condition 2 above which are not clearly stated by USCIS. Its rare that USCIS approves a petition under this condition because then it would mean that a H1 not fully utilized more than 10 years back could also be revived.

    This is my opinion not legal advice.

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