Approved H1B Petition (not yet stamped) valid if you leave company

[sanjay2005]

Hi,

Thanks in advance for responding to my queries. My company applied for my H1B Apr-2014 and my petition is approved. I have not gone for stamping yet since my company has not been able to get me a project in US, and not sure if it will be able to do so in the near future. So, I was looking at other options:

1. Can another company apply for a new H1 for me using my approved petition so that I am exempt from the annual cap? If yes, till when will my petition be valid?
2. If i leave my current company and remain unemployed for whatever reasons for some time (say 3 months), will my petition still be valid? That is, will any other company be able to apply for a new H1B petition using the same approved petition number after 3 months of me being unemployed?

Regards,
Sanjay

[Kanmani]

Sanjay,

Welcome to the forum!

1. Yes, Employer B can file a H1B petition cap exempted provided you are a regular employee of company A with paystubs/tax returns etc., even though you are out of project. Are you with a consulting employer?

Extension period would be 3 years minus your stay with company A (or) If the attorney clearly mentions the duration of your employment as 3 years and beyond, further requests for 3 years, you may be granted with full 3 years assuming you are currently in the 1st span of your 6 years cycle.

2. If you don't work, you will be out of status, the employer could still file an H1b petition, but it will be approved without extending your status, i.e., I-94 will not attached to the H1b approval notice . In that case you may have to leave the country and re-enter, upon arrival an I-94 card with H1b status will be issued at the port of entry.

[Spectator]

Kanmani,

I think Sanjay is still in India, since the approval appears to have been made under the FY2015 Cap.

His H1B would only be effective from October 1, 2014.

He does not yet have an H1B visa.

Having never been in the USA in H1B status, he would still have the full 6 years available for any new petition that another Company might apply for.

[Kanmani]

Thanks Spec. I didn't notice. His description on leaving the current employment and remaining unemployed just deviated me to assume so.

Sanjay in India, and a fresh H1b by another employer is subjected to H1b cap, am I correct?

[Kanmani]

Spec, What if he is already in US on L-1? If yes, how can he reinstate his status upon voluntary unemployment?

[Spectator]

Thanks Spec. I didn't notice. His description on leaving the current employment and remaining unemployed just deviated me to assume so.

Sanjay in India, and a fresh H1b by another employer is subjected to H1b cap, am I correct?

Kanmani,

Frankly, I am hesitant to reply.

My concern would be with the language of INA 214(g)(7).

(7) Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

My interpretation would be that in a case where the person had never been in the USA in H1B status for even a single day, then as the beneficiary of a subsequent petition by another Company, they "would be eligible for a full 6 years of authorized admission at the time the petition is filed". "Admission" only happens when the person physically sets foot on USA soil after having presented themselves at POE with suitable documentation.

That would trigger the exemption above and the new petition request would be counted against the cap, since the beneficiary would never have "used" their previous H1B petition approval to obtain a visa and to be admitted to the USA in H1B status.

Even a single day in the USA in H1B status would leave the remaining authorized admission period as less than 6 years, enabling the person to be cap exempt for future petitions up to the maximum 6 years allowed.

It seems USCIS is very variable in their application of this. I've seen posts where people said that they did transfer, having never been in the USA in H1B status. Others have reported entirely the opposite result.

[Kanmani]

Agreed Spec.

I have a question at post no.5, which probably might have missed your notice.

[Spectator]

Agreed Spec.

I have a question at post no.5, which probably might have missed your notice.

Kanmani,

I didn't understand the question in the context of the original post.

[Kanmani]

Sorry Spec. I am completely semiconscious right from the morning. I took for granted that Sanjay is in USA. #5 is completely wrong.

[sanjay2005]

Thanks a bunch for all the quick responses.

Yes, I am still in India as Guru pointed out. I was on L1B visa a few years back though, but never on H1B.

So, based on the policy pointed out by Guru, is there anyway around this? Or is it recommended to stick with my current company till I have an H1B visa and then look for transfer.

Thanks in advance.

[Kanmani]

Sanjay, Ignore my earlier reply. I presumed you are already in USA on some other status say 'L' and replied accordingly. Please go with Spectator's reply.

Now that you are in India, you don't have to worry about maintaining status. Out of job in India has no impact on your future petition whatsoever. Good Luck!

[sanjay2005]

Sanjay, Ignore my earlier reply. I presumed you are already in USA on some other status say 'L' and replied accordingly. Please go with Spectator's reply.

Now that you are in India, you don't have to worry about maintaining status. Out of job in India has no impact on your future petition whatsoever. Good Luck!

Thanks Kanmani. Just want to confirm - so even if I am out of job in India for say 3 months, when a new employer applies for a 'fresh' H1, will my petition be cap-exempt or will my petition come under the cap and then go through the lottery process (if applicable)?

Thanks.

[Kanmani]

Sanjay, this is has already been answered above Post No.6 by Spectator.

There is no specific mention in the law on how unused H1b approval petition is treated.

[Kanmani]

"8CFR214.2(h)(8)(ii)(C)

(C) When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year."

Spec,

If the petition is revoked and the number is taken back to assign it to another fresh H1b applicant who must be subjected to numerical limits, can we consider the original applicant is reverted back to his cap-subject state?

[sanjay2005]

Thanks Kanmani and Spec for the insights.

[rakeshg31]

Sanjay, this is has already been answered above Post No.6 by Spectator.

There is no specific mention in the law on how unused H1b approval petition is treated.

Hi Kanmai or sanjay...Did you get H1B stamped successfully using old petition(more than 6 yrs) under cap exempt after above discussion? Kindly reply I am in the same boat.