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Employer cancelling my H1, how to avoid cancellation

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  • Employer cancelling my H1, how to avoid cancellation

    This April an employer (who isn't my current employer), submitted a H1 petition for me. The same got approved this June (06/2015). I have my receipt number.
    Currently I am in India and the employer wants me to travel this month, I cannot travel for next 3-4 months. Employer has informed me that, he will get my H1 cancelled if I cannot travel this month. I don't have the original petition, employer has the petition. Also, my Visa isn't stamped.

    1) Can an employer withdraw/cancel a H1 petition?
    2) What can I do to avoid cancellation?
    3) In case if this H1 is cancelled, will I be CAP exempt? (Can I evade lottery?)***
    4) If another employer is willing to get my H1 transferred, Can I get it transferred?
    4b) Will cancellation of H1, have any impact on this transfer? (There is an employer, who is willing to get my Visa transeferred to his company, however, he is apprehensive that once the original employer cancels my H1 petition, USCIS will revoke the transfer, is this a genuine risk?)
    5) What would be the best approach to get it transferred to a new employer.
    a) Request the old employer to send the petition, use that petition to get it transferred to a new employer.
    OR
    b) Request the old employer to send the petition, get the visa stamped. Then ask the new employer to get it transferred? Considering I take this route, do I need to get my Visa stamped again, because of change in employer and transfer request was submitted after stamping?
    6) If I get my Visa stamped, then inform my employer that I cannot travel. He goes ahead and cancels my petition. In such a case, will I be CAP exempt. Because my Visa was stamped (Please note I am not travelling, just getting Visa stamped) ****
    7) If I get my petition transferred, will that have any chances of rejection during interview?
    8) Is it true that, if I get my Visa stamped, employer cannot cancel my petition?
    9) What should I do to ensure that my employer losses the right to cancel my petition.
    10) If my employer cancels this H1, will that have any impact on my future petitions? ***

    Thanks in Advance. Please let me know if I am missing anything that I should consider in current scenario.
    All I want is, to hold a Visa and still not travel in the near future.

    Thanks Again.

  • #2
    1) Can an employer withdraw/cancel a H1 petition?
    >>> They sure can. It is their petition. They can withdraw it if needed.

    2) What can I do to avoid cancellation?
    >>> You can do nothing except convince the employer not to revoke it.

    3) In case if this H1 is cancelled, will I be CAP exempt? (Can I evade lottery?)***
    >>> You need a copy of your H1B approval notice for that. You can't do much with your receipt notice.

    4) If another employer is willing to get my H1 transferred, Can I get it transferred?
    >>> Possible if you have a copy of your H1B approval notice.

    4b) Will cancellation of H1, have any impact on this transfer? (There is an employer, who is willing to get my Visa transeferred to his company, however, he is apprehensive that once the original employer cancels my H1 petition, USCIS will revoke the transfer, is this a genuine risk?)
    >>> The current petition doesn't need to be active to file a transfer post Oct 1st. However,in recent times, USCIS seem to be issuing RFEs when someone tries to file a transfer without working for the employer. But they are case by case basis.


    5) What would be the best approach to get it transferred to a new employer.
    a) Request the old employer to send the petition, use that petition to get it transferred to a new employer.
    OR
    b) Request the old employer to send the petition, get the visa stamped. Then ask the new employer to get it transferred? Considering I take this route, do I need to get my Visa stamped again, because of change in employer and transfer request was submitted after stamping?
    >>> Visa is not required to transfer the petition. If yo have a copy of the approval notice, then a new employer can initiate a transfer.

    6) If I get my Visa stamped, then inform my employer that I cannot travel. He goes ahead and cancels my petition. In such a case, will I be CAP exempt. Because my Visa was stamped (Please note I am not travelling, just getting Visa stamped) ****
    >>> You will be CAP exempt even without the visa stamping. But like I said, if USCIS issues a RFE asking why you never worked for the employer who filed your CAP subjected petition, you should be able to answer that RFE to get the transfer approved.

    7) If I get my petition transferred, will that have any chances of rejection during interview?
    >>> Petition and visa are two separate process. You cannot go for stamping without a valid approved petition. Visa can be rejected for various reasons. Petition approval does not guarantee visa approval.

    8) Is it true that, if I get my Visa stamped, employer cannot cancel my petition?
    >>> Nope. That is not true.

    9) What should I do to ensure that my employer losses the right to cancel my petition.
    >>> You can do nothing. It is their petition. They can do whatever they want with it. You don't have to worry about they cancelling their petition if you have a copy. You can initiate a transfer anytime (even after the current petition being revoked) later.

    10) If my employer cancels this H1, will that have any impact on my future petitions? ***
    >>> Nope.

    Thanks in Advance. Please let me know if I am missing anything that I should consider in current scenario.
    All I want is, to hold a Visa and still not travel in the near future.
    >>> Makes no sense. Why spend all that money you are not ready to travel?
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Thank you

      Hi

      Thanks a lot for responding.
      Could you please confirm my understanding

      1) If I am in possession of petition copy, I can ask another employer to file a CAP exempt petition, even though the petition was cancelled by the employer.
      2) CAP exempt petitions can be filed anytime of the year. And it need not be during month of April (like new petitions)
      3) Because my Petition has been approved earlier, even if it gets cancelled now. I will still be CAP exempt, provided I have a copy of petition that was approved earlier.

      Sorry for troubling again, TIA

      Thanks
      Ravi

      Comment


      • #4
        Thanks Shervin

        Hi Shervin

        Thanks a lot for responding.
        Could you please confirm my understanding

        1) If I am in possession of petition copy, I can ask another employer to file a CAP exempt petition, even though the petition was cancelled by the employer.
        2) CAP exempt petitions can be filed anytime of the year. And it need not be during month of April (like new petitions)
        3) Because my Petition has been approved earlier, even if it gets cancelled now. I will still be CAP exempt, provided I have a copy of petition that was approved earlier.

        Sorry for troubling again, TIA

        Thanks
        Ravi

        Comment

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