Quota FAQs

H-1B revoked by the USCIS - impact on Quota/lottery exemption

Authored on: Thu, 03/25/2021 - 06:48

Question

I have question to related to H1B revocation and Cap exemption.

I am based in India and have never traveled to the US. Back in 2014, Employer A filed H1B for me. It got picked in the lottery, got approved for 3 years till August 2017. When I went for Visa stamping at Chennai consulate, I was given 221g and the case was sent back to USCIS and it got revoked in August 2017. ( about 3 years later of my H1B Approval)

Now I have an employer B who is ready to sponsor H1B. Am I eligible for cap exempt or should i go through the regular CAP quota? Earlier H1B can be used and transferred to my new employer?
 

Answer

Video URL

Unstamped H-1B Quota Exemption

Authored on: Fri, 09/25/2020 - 09:17

Question

I had an H1B from my previous employer that was valid from Dec 2016-Dec2017. I never got the visa stamped and it has complete 6 years unused on it. The question I need your help with is if an employer files H1B for me, would it be eligible for Cap-Exempt processing or not?

Answer

Watch the Video on this FAQ: Unstamped H-1B quota exemption

Video Transcript

The government may be pushy on this issue, but they do maintain that if you have not received a change of status for example from F-1 to H-1 or an H-1B visa stamp. If you are outside the USA you are still subject to the quota. I think they are legally wrong. So the bottom line is you should try to go ahead and give it a shot and I don't think the government is in a legally defensible position.

FAQ in detail...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Impact on Current H-1B if Another H-1B is Denied

Authored on: Mon, 06/24/2019 - 03:21

Question

I am already on a cap-exempt H1b working for a non-profit full time. Another employer filed my H1b petition on the cap-subject quota on april 2018 and got an RFE april 2019 and was denied with a reason for maintaining of status. They asked my paystubs from my current employer. My questions are:<br>
1. will there be any impact to my current H-1B?<br>
2. If they only ask for paystubs, can I submit them and initiate motion to reopen the case? what are the possibilities of success.

Answer

Watch the Video on this FAQ:

Impact on current H-1B if another H-1B is denied

Video Transcript

1. No, not if you are maintaining status. 

2. If the case was denied just for maintenance of status and you have the pay stubs that are required then there is a very high likelihood the case will be reopened. If the petition is denied, then you are still subject to the H-1B quota. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-1B Petition Revocation During Visa Process/Reaffirmation

Authored on: Fri, 07/27/2018 - 04:37

Question

I had my H1 visa extension stamping appointment on Feb 21, 2018. Initially it was put under Administrative Processing and later on May 23rd my petition was send back for revocation. As per the inquiry with embassy they told me that "Based on the documents you submitted and the information elicited in your interview with a consular officer, you were determined ineligible for an H1B work visa. Your petition was returned to the Kentucky Consular Center (KCC) on May 24. Currently H1 status website shows KCC received the application on June 8. Once KCC receives a petition, it is returned to the approving USCIS office for review and possible revocation. At this point, USCIS can either reaffirm the petition or issue a notice of intent to revoke it. What are the options available with me now?

Answer

Watch the Video on this FAQ: H-1B petition revocation during visa process/reaffirmation

Video Transcript

In a case where you got your H-1B approval but you have travelled outside the USA and you need a visa, you go to the US consulate for visa stamping. They put you in administrative processing and discover something which often is unjustified frankly and sometimes can be justified, gives them some reason to send the case back to the USCIS saying that the case needs to be revoked and that can take a few months (5-6 months). Then USCIS will issue a notice of intent to revoke which would be sent to your lawyers as well as to your employer that says we found out this information through the consulate and it looks like this case needs to be revoked. You have 33 days to respond to USCIS and justify why they shouldn't revoke it. Once the employer responds to it and if USCIS finds out that the case is really approvable and the consulate is mistaken, they reaffirm the case and send it back to the consulate. This whole thing can take months and even a year.

The option would be to file another H-1 through another employer or with the same company  that is if this was not a quota H-1 and there is no fraud, etc., involved. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Exemption from H-1 Quota and Visa Stamping

Authored on: Tue, 07/11/2017 - 08:13

Question

In 2014, My wife was working with employer "A" on L2 EAD and the employer "A" filed H1B petition in April-2014. She got approval notice in May-2014 but due to some family reasons we have to go back to India and she continues working for the same employer from India since then. Her approved H1B petition with the same employer "A" is valid till Aug-2017 and H1B visa is stamped in Dec-2016 for the same employer "A". She never traveled to the USA on that H1B visa as her employer does not have any opportunity there. Since she never traveled to the USA on her H1B visa ever, does that mean she has never granted status as an H1B Non-immigrant?

Answer

Watch the Video on this FAQ: Exemption from H-1 quota, Visa stamped, did not join employer

Video Transcript

I personally feel once your case is approved on October 1st, you should be exempt from the quota. If you are outside the USA and you do not get a visa stamp, the government takes the position that you are not yet exempted from the H-1 quota. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Am I Exempt From H-1 Quota If Visa Was Not Stamped

Authored on: Mon, 09/12/2016 - 00:58

Question

My query is that whether my name which was sponsored by an IT company and come under quota (in 2008) could still be considered to remain as 'VALID' and 'UNUTILISED' under the year 2008 quota (and initial period 2008-2011). As no stamping of H1B took place in 2008, then can this be UTILIZED by any new employer/sponsor (under the 2008 quota) but with the validity starting from the date of stamping (e.g. 2016) and till subsequent years (as applicable). Can we say that this would be a case of stamping based upon PREVIOUS quota/approval and any new sponsor would NOT require to file a fresh H1B petition. So, only some MODIFICATION of the 2008 petition documents would required to be made by any new employer/sponsor.

Answer

Watch Video : Am I exempt from H-1 quota if visa was not stamped

Video Transcript:

Rightly or wrongly USCIS has been saying that if you are outside the USA and you do not get your visa stamped we do not consider you to be exempt from the quota. Chances are they are going to make you file for fresh quota. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

How Does H-1 Visa Quota System Work?

Authored on: Tue, 03/10/2015 - 09:03

Question

I am an Indian and have been living in London for the last 6 years and currently in the process of getting British Citizenship, which I am hoping to get by April and subsequently British Passport by June. I work for a leading international bank in London.<br>

My girlfriend is currently doing Masters in Illinois, USA, so, I am looking to move to US, but understand the H-1B visa is a bit complicated.
<br>
My question is, how does the quota system work for H-1-B visa and when does the new quota start, and what's the best period to apply for one? So, If I am looking to move there in October 2015, when do I have to get an employer to apply for H-1B for me (provided an employer agrees to sponsor me)? or, is there a particularly good time to apply for H-1B visa?
<br>
Also, is it easier to get the visa if I am there physically in the US or it doesn't matter?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=baprYGs8IzQ&t=138

FAQ Transcript:

Well you don’t have any time to lose. Apply right away. The way it works is your H-1 application must reach the USCIS on April 1st no earlier and usually no later. Sometimes they give us three to four days but normally April 1st is the day the quota opens and that’s pretty much the quota closes as well and there are usually more applications received by the government than they have visas almost two to one ratio maybe more sometimes and then there is a lottery held and if you get selected in the lottery then your H-1B gets approved. You go for a visa stamping and you can enter USA no earlier than 10 days before October 1st when your H-1B visa period starts.

What is this thing about October 1st?

The US government fiscal year begins on October 1st so all the quotas including green card and H-1’s they get reset on October 1st.  H-1 you can apply six months ahead of the start date  which is April 1st  so that’s why you file on April 1st  and you begin working on October 1st  but you can enter USA ten days ahead of October 1st.

When do I become exempt from H-1 quota

Authored on: Tue, 02/17/2015 - 01:57

Question

I got my H-1B petition approved in 2008 and again got it extended in 2008 unto Jan 2011. Now, I have never used both these visa's to work in US. Though, I have traveled few times to US but on B-1 visa for meetings with customer. Today, one of my friend told me that I am eligible for cap exempt H-1B application if I get job in US. Also, what will be the processing time for this cap exempt H-1B. Can this be done in premium processing in 15 days ?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=518

FAQ Transcript:

It is a very odd situation. I think the USCIS interpretation of when you become exempt from the quota is incorrect. But this is their current thinking at least as of last week. With them you never know. They felt if you are outside USA and you get an H-1B approval never go for visa stamping. You are not exempt from the quota. So if you never get visa stamped we don’t consider you to be exempt. If you’re in the United States and you get your H-1 approval but the employer who got the approval revokes your H-1 before October 1st you are not exempt from the quota. I think both the interpretations are incorrect. I would encourage you to try and take a chance and see if you can consider being quota exempt. Anyway if I were you I would certainly file a quota application in April just to preserve all my rights and if it does not get selected in the lottery file again and ask for quota exemption because of the reason that you have an H-1 from before.

 

Can I postpone H-1 status

Authored on: Tue, 02/17/2015 - 01:44

Question

Currently I'm on L-1A status and it expires in *** hence my employer is planning to file new H-1B this April not change of status. Here are my questions...<br>
1) If I get H-1B this April, is it mandatory to work on H-1B from Oct 01, 2015?<br>
2) Shall I continue with L-1A status until it expires and then can I change to H-1B?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=441

FAQ Transcript:

The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

Cap Gap Extension Rules

Authored on: Wed, 02/19/2014 - 08:16

Question

I am on F-1/OPT extension which expires on March 2014. Is there any grace period so that my employer can file my H-1 visa. Do I loose my status after March or is there any grace period. If I come under current status when can I file my H-1?

Answer

When your application for H-1 is filed within 60 days of OPT expiring and within the time for the H-1 quota, you are protected by cap gap extension rules. See: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specia... 

H-1 Through Multiple Employers

Authored on: Mon, 01/20/2014 - 02:43

Question

I am planning to apply for H-1 through multiple employers. What are the precautions I need to take. I have my project end date in August, one of my employer will be representing with my current job. Will it be a problem later if the client details does not match ?

Answer

If you are a quota applicant, you can apply through as many unrelated companies as you like. Do not be a party to any misrepresentation. 

H-1B Filed Under the Quota for the Year 2014

Authored on: Mon, 07/22/2013 - 07:14

Question

My H-1B was filed under the quota for the year 2014 and recently approved. Am I now in H-1B status?

Answer

A petition filed under the 2014 quota cannot have an effective date before October 1, 2013.  You cannot be in H-1B status prior to that date.

Request to Upgrade to Premium Processing

Authored on: Wed, 07/17/2013 - 04:00

Question

My employer filed my H-1B petition during the Quota using regular processing. Now we have received an RFE. Is it possible to change to premium processing now in order to receive an earlier decision from USCIS?

Answer

When the RFE response is submitted to USCIS, a request to upgrade the petition to premium processing can be submitted along with the response.  In order to upgrade to premium processing, a new Form G-28 and a Form I-907 will need to be prepared and sent to the employer for signature to be submitted to USCIS with the request to upgrade to premium processing.

H-1B Quota and the "Reminder Option"

Authored on: Wed, 06/19/2013 - 03:57

Question

I have H-1B stamped valid till March 2014 and I am in India right now. My current employer laid me off and cancelled my petition.I have got a call from a consultant that they can file a new petition in premium category against my exiting stamped visa under cap exempt category even if my current petition is already cancelled. Can I use my H-1B in this way even if my petition is cancelled by my earlier employer and me being available in India .

Answer

There are two parts to your question. Are you subject to H-1 quota? The answer is no, not until you have been physically outside USA for a year. Even after that, you may have the "remainder option." Second, can you use the same visa stamp to travel? The answer is after your H-1 approval, consulates want you to come in for stamping again.

Filing H-1B Quota Cases Next Year

Authored on: Mon, 06/03/2013 - 01:37

Question

Can you let me know when we can start filing H-1B cases again for this year?

Answer

If the beneficiary is not subject to the quota, you can file an H-1B for them at any time.  If the beneficiary is subject to the quota, the new H-1B cannot be submitted to USCIS  before April 1, 2014, with an effective date of October 1, 2014.  We will start working on next year’s quota cases in January 2014.

Tracking H-1B Petition During Quota

Authored on: Mon, 04/15/2013 - 04:22

Question

How will I know if my H-1B petition has been accepted in the quota?

Answer

For cases filed with Premium processing, USCIS will issue a receipt notice via e-mail.  Cases filed with regular processing will have to wait until either the receipt notice is sent via USPS (U.S. Postal Service ) or the case is returned by USCIS.