H1B Expired , can it be reapplied under non cap for FY2013

[Chammi]

Hi Experts,

Background:
I need your help to understand the scenario with my H1 B visa.
H1B cap petition was approved for me in 2009 for a client X with expiry on 31 July 2012.I never travelled to US and I only got a chance to use my H1 in Jan 2012. My employer applied for H1B premium amendment to go to US and work for different client Y. During H1B amendment RFE(I-129) was raised and it was responded by my employer. But in May I got a denial notice for my amendment request due to some documentation goof up. My employer has appealed against the denial and we are awaiting USCIS response on the appeal.

Please can you help me to understand the below queries:

1. Can my H1 be reapplied for FY2013 under cap exempt/non cap (USCIS declared as of 11th June cap quota is finished for FY2013). If yes, when would I be eligible to go to US (anytime or only after October 1 2012)

2. If I leave my current employer , can my new employer apply for H1B under cap exempt/non cap using the old petition details. If yes, what documents will my new employer need to do so (EAC receipt number for original petition, or EAC number for amendment or I-797 notice etc.. do I need all of them or only one?)

3. If answer to query 2 is yes, till when can my new employer use my old petition and file a new H1b cap exempt/non cap for me.

Thanks a lot in advance for your help.

Chammi

[kabkaba]

Any employer can file a cap-exempt petition for you until (2009+6 = 2015).

[Chammi]

Thanks Kabkaba.

What docs do my new employer need to file H1 cap exempt.
Is the Denial notice sent by USICS for H1 amendment same as initial approval notice(I-797) kind of letter or something else.

Chammi
(Current State - Confused )

[kabkaba]

Initial approval notice/receipt notice or at a minimum receipt number.

[Chammi]

Thanks once again.
One more query, will the denial notice for H1 amendment create any problems for my new H1B raised under cap exempt.

Also, by initial approval notice / receipt do you mean the I-797 B, Notice of Action from USICS as I only have that scanned document as approval notice. Will scanned copy of I-797 enough or original copy is required.

[kabkaba]

Initial approval notice.

[Chammi]

Sorry for so many questions but I am completely unaware of this H1 process.
Still I am confused on the below points:
1. Will the denial notice for H1 amendment create any problems for my new H1B raised under cap exempt?

2. Also, by initial approval notice / receipt do you mean the I-797 B, Notice of Action from USICS or some other document.

3. Will scanned copy of I-797 enough or original copy is required?

Thanks a Million,
Chammi

[shervin143]

1. Will the denial notice for H1 amendment create any problems for my new H1B raised under cap exempt?
>>> No.

2. Also, by initial approval notice / receipt do you mean the I-797 B, Notice of Action from USICS or some other document.
>>> I-797 is called the approval notice.

3. Will scanned copy of I-797 enough or original copy is required?
>>> Copy will do.

[Chammi]

I have been told by my employer that the denial appeal does not have any response SLA even though the H1 amendment request was a premium application which means it can go on for months withut any result.

Also when I proposed to file a new cap exempted H1 application request instead of appeal , the guy handling my case (not an attorney but one of team member who handles these type of cases under some attorney I guess) was also in favour of not raising a denial appeal and going for a new application but he suggested that since H1 amendment is denied in May only so I should wait for atleast 4-5 months before filing a new cap exempt request.

Just wanted to take your advice what should I do , immediately go for new H1 cap exempt after expiry (my petition expires on 31-July-2012) or I should be waiting for 4-5 months.

Also, can Imy employer apply for L1 visa ASAP , will it become negative for H1 later on.

Thanks in advance.

Chammi

[shervin143]

Filing an MTR can take a long time to get the result. Since you are outside U.S, the employer can withdraw the appeal and try to file the extension again with all the required documents. It can be done anytime.

[curiouskk]

Any employer can file a cap-exempt petition for you until (2009+6 = 2015).

Thanks kabkaba.

Just want to make sure if I have understood the case well. My H1B expired in Sep 2010.

1) Can any employer file the renewal under cap-exempt EVEN IF I never travelled to the US?

2) 2007+6 = 2013. Does that mean my visa can be filed for the Cap 2013 which is this year OR it can be applied till year 2013 (which may be for cap for 2014)?

Thanks in advance.

[kabkaba]

Thanks kabkaba.

Just want to make sure if I have understood the case well. My H1B expired in Sep 2010.

1) Can any employer file the renewal under cap-exempt EVEN IF I never travelled to the US?

--- Yes

2) 2007+6 = 2013. Does that mean my visa can be filed for the Cap 2013 which is this year OR it can be applied till year 2013 (which may be for cap for 2014)?

--- Cap-exempt petition has nothing to do with cap. It can be filed anytime until 6 years from the last petition filing date.

Thanks in advance.

See above.

[silverprince]

Any employer can file a cap-exempt petition for you until (2009+6 = 2015).

Any employer can file a cap exempt petition not just till 2015, but within 6 years of the date on which he maintained h1b status