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H1B approved petition but never used and now filing new H1

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  • #16
    H4 to H1B and back to H4

    Hi Shervin,

    Thanks much for your response.

    My H1B was filed by my Indian company in July.I got married in Septemebr and later entered US on H4.Since my H1B was filed by my Indian company before my marriage,I suppose its not a COS application.Still my H1B is pending approval.They want me to come back as they dont have any current postions in near future in US to offer me after H1B approval.So I am planning to resign and be in US on H4 and later try jobs with a new employer.

    So when my H1B gets approved,do I remain in H4 as my application was filed before my marriage.

    Also one of the employer is searching contracts for me in US and he says that as already my H1B is filed ,I will be in this year 2012 quota ,if he could find me a project,he can transfer my application even its pending approval.Is this true.??

    If I transfer my aplication some 3 months later after approval with good employer ,Are there any chances of rejection of Visa by UCSIS as I have not used my H1B and didnot maintain any status.

    Thanks In Advance.



    Originally posted by shervin143 View Post
    i am currently(Nov) on H4 visa and my H1B petition was filed in July and is still pending,

    when my H1B gets approved and i donot want to go back to my employer, can i continue to stay in H4 visa?
    >>> Was the H1B filed as a COS from H4 or as a consular process? If it is a COS, then upon approval, your status will change to H1B and you should be working and get paid to maintain your H1B status. In such case, if you want to remain in H4, then either a COS to H4 should be filed immediately or you should leave the country and return back in H4 visa.

    Can a new employer file H1B approval transfer?
    >>> Possible.

    Comment


    • #17
      My H1B was filed by my Indian company in July.I got married in Septemebr and later entered US on H4.Since my H1B was filed by my Indian company before my marriage,I suppose its not a COS application. Still my H1B is pending approval.They want me to come back as they dont have any current postions in near future in US to offer me after H1B approval.So I am planning to resign and be in US on H4 and later try jobs with a new employer.
      >>> COS is only possible when the petition was filed when you are actually in a valid status in U.S. When you are outside U.S you do not hold any status. So the H1B can be only filed for consular process and NOT COS.

      So when my H1B gets approved,do I remain in H4 as my application was filed before my marriage.
      >>> If the H1B was filed when you were outside U.S, then the H1B will get approved for consular process and you will remain in H4 status when it gets approved.

      Also one of the employer is searching contracts for me in US and he says that as already my H1B is filed ,I will be in this year 2012 quota ,if he could find me a project,he can transfer my application even its pending approval.Is this true.??
      >>> No. You need the receipt number from the approval notice to file the transfer.

      If I transfer my aplication some 3 months later after approval with good employer ,Are there any chances of rejection of Visa by UCSIS as I have not used my H1B and didnot maintain any status.
      >>> When you are in H4, how can you maintain H1B status? There will be no such issues. The transfer will not get rejected for this reason. You will need a copy of the previous approval notice or at least the receipt number to prove that you are already CAP counted.
      Not a legal advice. Use of this information is strictly at your own risk.

      Comment


      • #18
        Hi Shervin,

        Thanks much for your quick response.So I concluded that I have to wait until my H1B gets approved and then resign my present company and use that H1B later when I get an opportunity from other employer.But could you please let me know when are the chances likely that my H1B gets approved.Can I expect that in one week or so ,since it has been already more that 4 months(July 15) .My present employer is askng me to come back to India as I dont have no more leaves.

        Thanks,
        KrishnaPriya A



        Originally posted by shervin143 View Post
        My H1B was filed by my Indian company in July.I got married in Septemebr and later entered US on H4.Since my H1B was filed by my Indian company before my marriage,I suppose its not a COS application. Still my H1B is pending approval.They want me to come back as they dont have any current postions in near future in US to offer me after H1B approval.So I am planning to resign and be in US on H4 and later try jobs with a new employer.
        >>> COS is only possible when the petition was filed when you are actually in a valid status in U.S. When you are outside U.S you do not hold any status. So the H1B can be only filed for consular process and NOT COS.

        So when my H1B gets approved,do I remain in H4 as my application was filed before my marriage.
        >>> If the H1B was filed when you were outside U.S, then the H1B will get approved for consular process and you will remain in H4 status when it gets approved.

        Also one of the employer is searching contracts for me in US and he says that as already my H1B is filed ,I will be in this year 2012 quota ,if he could find me a project,he can transfer my application even its pending approval.Is this true.??
        >>> No. You need the receipt number from the approval notice to file the transfer.

        If I transfer my aplication some 3 months later after approval with good employer ,Are there any chances of rejection of Visa by UCSIS as I have not used my H1B and didnot maintain any status.
        >>> When you are in H4, how can you maintain H1B status? There will be no such issues. The transfer will not get rejected for this reason. You will need a copy of the previous approval notice or at least the receipt number to prove that you are already CAP counted.

        Comment


        • #19
          No one can predict when you might get a decision on your petition. The usual processing time is 2-3 months. In case of an RFE, it will take more time. Was there an RFE on your petition? If not and if it is already 4 months, then you should get the decision soon. What does the online case status say?
          Not a legal advice. Use of this information is strictly at your own risk.

          Comment


          • #20
            Hi Shervin,

            My application was accepted by USCIS on July 15th.Online case status says that it is still under review.

            Thanks,
            KrishnaPriya A

            Originally posted by shervin143 View Post
            No one can predict when you might get a decision on your petition. The usual processing time is 2-3 months. In case of an RFE, it will take more time. Was there an RFE on your petition? If not and if it is already 4 months, then you should get the decision soon. What does the online case status say?

            Comment


            • #21
              Did you receive an RFE on your petition. If not, then ask your employer/attorney to get an infopass appointment with USCIS to discuss your case.
              https://www.immihelp.com/infopass-ap...nt-with-uscis/


              Originally posted by krishna3010 View Post
              Hi Shervin,

              My application was accepted by USCIS on July 15th.Online case status says that it is still under review.

              Thanks,
              KrishnaPriya A
              Not a legal advice. Use of this information is strictly at your own risk.

              Comment


              • #22
                Hi Shervin,

                Thanks for the information.My employer is not willing to get an infopass appointment .He admits that these days it is taking 5 months for H1B approval.

                H1B quota 2012 got filled.Does it have any effect on my present application.??

                Thanks in Advance.

                Originally posted by shervin143 View Post
                Did you receive an RFE on your petition. If not, then ask your employer/attorney to get an infopass appointment with USCIS to discuss your case.
                https://www.immihelp.com/infopass-ap...nt-with-uscis/

                Comment


                • #23
                  Quota has nothing to do with your petition since it was filed a long time ago. 5 months without an RFE is a long time. The petitions get approved within 2-3 months these days.

                  Originally posted by krishna3010 View Post
                  Hi Shervin,

                  Thanks for the information.My employer is not willing to get an infopass appointment .He admits that these days it is taking 5 months for H1B approval.

                  H1B quota 2012 got filled.Does it have any effect on my present application.??

                  Thanks in Advance.
                  Not a legal advice. Use of this information is strictly at your own risk.

                  Comment


                  • #24
                    H1B cap exemption

                    Hi All,

                    I got my H1B petition approved and it was valid from 10/01/2007 till 09/15/2010. I have never used this H1B to enter US, I didnt go to US consulate for H1B visa stamping.
                    Now i got an opportunity and company is asking if I have valid H1B. I remember through forum is that there is a six years limit to fall under H1B cap exemption.
                    My question is

                    1. Is it possible to get new H1B under H1B cap exemption.
                    2. Is six years considered from Oct2007 or from Apr 2007?
                    3. If i apply for H1B now, can i join the company immediately or do i need to wait till Oct2013?

                    Thanks & Regards
                    Logesh

                    - - - Updated - - -

                    Hi All,

                    I got my H1B petition approved and it was valid from 10/01/2007 till 09/15/2010. I have never used this H1B to enter US, I didnt go to US consulate for H1B visa stamping. I live outside US.
                    Now i got an opportunity and company is asking if I have valid H1B. I remember through forum is that there is a six years limit to fall under H1B cap exemption.
                    My question is

                    1. Is it possible to get new H1B under H1B cap exemption.
                    2. Is six years considered from Oct2007 or from Apr 2007?
                    3. If i apply for H1B now, can i join the company immediately or do i need to wait till Oct2013?

                    Thanks & Regards
                    Logesh

                    Comment


                    • #25
                      I have a similar issue right now.

                      Company A filed my H1-B on April, 2018 which got approved in December, 2018.
                      1. I entered US in month of October, 2018 on L2 visa and got my L2- EAD. Hence, I never triggered the H1-B visa neither I worked with Company A
                      2. Then I started my job with Company B in the month of Jan, 2019.
                      Now, I would like to move to H1B using the approved petition from Company A so that I can continue working with Company B (my EAD is expiring in weeks). If yes, then do I really need paycheck from petitioner company who applied for my H1B (company A in this case) to get visa approved and continue working with company B.

                      Thanks. Any feedback is appreciated.

                      Comment


                      • #26
                        I am in a similar situation:

                        1. 2018, April: I filled my H1B with Employer A and it got picked in lottery.
                        2. 2018, September: I got married and came to US on L2 visa. At this time, my H1B visa was not approved.
                        3. 2018 November: I got my L2 EAD and got a job on my EAD with Employer B. Even at this time, my H1B visa was not approved.
                        4. 2018 December: I got H1B approved for three years which expires in June, 2021. but never triggered as I got a job with Employer B. I never worked with Employer A but they did not revoke my H1B application. So, it is still valid.
                        5. March, 2020: My L2 EAD expired. I had to resign from my job with Employer B
                        6. March, 2020: I am on H4 visa now.
                        7. As of today: At this point, I need to use my H1B to start working with an Employer C or in fact any employer.

                        Can i use my H1B petition with Employer C to start working again? Issue with this filing would be that i dont have a paycheck from the Employer A as I never worked for them.
                        Last edited by visa_2014; 06-08-2020, 11:06 PM.

                        Comment

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