221g Denial - New H1B - H1B Cap Numbers

[garyshah]

I received a 221g denial at mumbai for EMPLOYER A due to problems with the company.

I am planning to apply for new H1b with company B and request for a 3 year extension based on I-140 from company A.

Do I need to file a new H1B under current annual cap or I do not worry about the availability of annual cap numbers as I have been already counted against previous cap numbers.

[shervin143]

Company A should not revoke your I-140 for you to apply an H1B with a different employer based on Company A's I-140 approval. Also you will need a copy of the I-140 approval to file an extension based on it.
If you haven't completed all 6 years in the H1B CAP that you hold, then you can ask your new employer to file a petition on the current CAP. You will get the remaining period in that CAP.

[garyshah]

Company A should not revoke your I-140 for you to apply an H1B with a different employer based on Company A's I-140 approval. Also you will need a copy of the I-140 approval to file an extension based on it.
If you haven't completed all 6 years in the H1B CAP that you hold, then you can ask your new employer to file a petition on the current CAP. You will get the remaining period in that CAP.

Thanks for the quick response. Just to clarify, even the h1B cap is not available for current fiscal year 2011, I can still apply for new H1B as I have been already counted against previous cap.

[varun4varun]

@sherwin

Will the petition still be approved if the H1B cap for the fiscal Year has been met( a new petition by the same employer)? should we have to wait till april until new H1B filing process starts.

My Visa Has been rejected by the consulate and has gone to USCIS for further review. So my employer has planned to file a new petition.

[shervin143]

If it is a new petition under a new CAP, then you will have to file it before the CAP runs out. Otherwise you will need to wait until next October to start working again (Apply in April 2011). How many years have you completed in the current CAP.

@sherwin

Will the petition still be approved if the H1B cap for the fiscal Year has been met( a new petition by the same employer)? should we have to wait till april until new H1B filing process starts.

My Visa Has been rejected by the consulate and has gone to USCIS for further review. So my employer has planned to file a new petition.

Thanks for the quick response. Just to clarify, even the h1B cap is not available for current fiscal year 2011, I can still apply for new H1B as I have been already counted against previous cap.

[garyshah]

If it is a new petition under a new CAP, then you will have to file it before the CAP runs out. Otherwise you will need to wait until next October to start working again (Apply in April 2011). How many years have you completed in the current CAP.

I have completed 5 years on my H1B. Do I still have to file before current year cap runs out?

[shervin143]

No. You can use the existing CAP.

I have completed 5 years on my H1B. Do I still have to file before current year cap runs out?

[garyshah]

No. You can use the existing CAP.

Evenif my 221g h1b petition is sent back to USCIS and revoked, can I still apply for new H1B though the cap runs out for current fiscal year?

[shervin143]

The petition is send back to USCIS to revoke, so that you cannot work for the employer who petitioned that H1B application. You can still use the CAP to file a new petition with a different employer and request an immediate start date.