H1 Cap Count with prior Approved Petition

[visa_help_2011]

I am applying for COS from L2/EAD to H1B. I had an old H1B petition approved in 2007 and visa stamped from Sep2007 to Sep2010.I didn't use this approval and never traveled on this visa.I am working currently on L2/EAD. Need help for the below:

Will I be counted in the cap this year or will not be counted as I am already counted in the cap in 2007?

If I will not be counted against cap this year, Can the H1 work start date be anytime before Oct1st 2011, as this start date is only for those who are newly counted under this year cap?

Many Thanks!

[anna1234]

you will not if you show the proof (copy of old petition)

start date can be anytime ...

I did this ...so answering

[visa_help_2011]

Thanks for the response!

If new H1 is applied as Cap Exempt using the opld approved petition, then will I get full 6 years for H1 stay or will it be lesser than that since I am using cap exempt from older petition.

[shervin143]

You will get whatever period is left in that CAP. H1B CAP is for 6 years. Only the time spend in H1B + L1 status in U.S in that CAP counts against your 6 year period.

Thanks for the response!

If new H1 is applied as Cap Exempt using the opld approved petition, then will I get full 6 years for H1 stay or will it be lesser than that since I am using cap exempt from older petition.

[visa_help_2011]

Thanks for the answer. I need info on the duration I will be left with to work on H1.

This petition of 2007 was never used and I have been working on L2/EAD for 1 year. Now if new H1 is applied under old cap, in order to start working on H1 immediately, How many years will I be left with to work on H1.

I appreciate an early response.

[shervin143]

If your never used any of the period in that CAP, then you have all 6 years remaining. Time spend in L2 doesn't count.

Thanks for the answer. I need info on the duration I will be left with to work on H1.

This petition of 2007 was never used and I have been working on L2/EAD for 1 year. Now if new H1 is applied under old cap, in order to start working on H1 immediately, How many years will I be left with to work on H1.

I appreciate an early response.

[visa_help_2011]

Now that I am going to apply under earlier cap, the LCA has to have revised immediate start date instead of Oct1st. Can we get the LCA changed for start date or should a new LCA be applied, discarding the existing one.

[shervin143]

A new LCA need to be filed.

Now that I am going to apply under earlier cap, the LCA has to have revised immediate start date instead of Oct1st. Can we get the LCA changed for start date or should a new LCA be applied, discarding the existing one.

[visa_help_2011]

My H1 petition was filed with immediate start date with new LCA but got approval from October1st as per my employer, though I was cap counted in 2007. How can this be possible as I am already cap counted and immediate start date should have been valid?

[kabkaba]

It is possible the employer's lawyer did not file this appropriately and assumed Oct 1 start date.

[visa_help_2011]

It was filed as Cap Exempt with the old approval notice attached. Was there anything that could be the reason like I actually didnot enter on H1 with old approval. But my understanding so far has been , whether one has worked or not on an earlier approved petition,One can still use the Cap count and have immediate start date.

[shervin143]

It is hard to comment without knowing how your lawyer filed I-129. Ask the lawyer to give you a copy of your I-129 and look into it. Maybe the lawyer requested a start date to be Oct 1st. Maybe the project documents provided by the employer shows the project start date as Oct 1st. You never know. It is hard to predict what actually went wrong. However, since you are already CAP counted, if filed correctly, you should have got an immediate start date upon approval. Maybe the lawyer filed it under a new CAP instead of the old one. Just attaching the old approval notice doesn't mean that USCIS will use the same CAP.

It was filed as Cap Exempt with the old approval notice attached. Was there anything that could be the reason like I actually didnot enter on H1 with old approval. But my understanding so far has been , whether one has worked or not on an earlier approved petition,One can still use the Cap count and have immediate start date.

[visa_help_2011]

I have looked at the I-129, in which, option Cap Exempt is selected, and 3(g) chosen which says beneficiary was granted h1 status in past 6 years, and reference to old approval notice number is given in explanation. Date of intended employment given from recent date. So is there anything that we can do?

[shervin143]

Probably your lawyer will need to check with USCIS in that case. Maybe it was a USCIS mistake.

I have looked at the I-129, in which, option Cap Exempt is selected, and 3(g) chosen which says beneficiary was granted h1 status in past 6 years, and reference to old approval notice number is given in explanation. Date of intended employment given from recent date. So is there anything that we can do?

[visa_help_2011]

Thanks for the info.
My husband , working on L1, is having a prior approved H1 expiring in Sep 2011. Never stamped and never used. If he changes his status from L1 to H1 with immediate start date, but if USCIS approves it from 1st Oct, then my existing L2 to H1 and then mow L2 to H4, both will be effective from 1st Oct. In this scenario, which one will take into effect?