My previous employer(A) had filed the H1B petition for me on Nov 2011. But i had changed my job to employer(B) due to personal reasons in Feb 2012. In March 2012 it got approved. Now, if (A) has not withdrawn the petiotion, can i ask (A) for re-hire and go for stamping with the petition that was approved in March 2012 ?
Yes, they can re-hire you and you can appear for stamping if they have not withdrawn the petition by now. Else, they will have to do H-1 transfer first and then you can appear for stamping.
Thank you very much for reply. H1 transfer means, they need to make any amendments to the petition that was filed before?
H-1 transfer means that a new employer will file a brand new petition and will submit a reference to old petition as proof of have already making through the cap.
Actually, if you have never been to US, then it will be H-1 extension and not H-1 transfer. This is b/c from USCIS’s perspective you have not changed employers (change of employer is only applicable when you change employers inside US).
Whatever the terminology, the employer will have to file a cap-exempt petition w/ reference to old approved petition for you.
Thank you Saurabh. So, my current employer can make the H-1 transfer / extension, using my approved I129 petition filed by previous employer and it is exempt form cap. Does it hold true even if my previous employer had withdrawn my approved petition? Please advise.
Yes, it still holds true even if the previous petition has been withdrawn by the employer.
Thank you very much Saurabh
My current employer is telling,
" Since your H-1B was processed by a different employer, it is mandatory that you should have got you visa stamped and travelled to US prior, to be eligible for H1B cap exemption."
IMO, that is not correct. Is this their opinion or did they talk to an attorney?
It is their opinion. Could you please help me with any links or clause that I can share with them and defend?
I don’t know of any links. You can search online about it, or consult an attorney to get a legal text on it.
Now, i have been asked by my current employer to submit the I797 approval copy to proceed with my case. Not sure, if my previous employer would provide that
If you cannot get the approval notice, ask them if they can use the receipt number and a print-out of online status showing that the petition has been approved. You can also evaluate whether to file FOIA w/ USCIS to get your approval copy or not.
It is I824 or G639 for getting the copy of approval notice? Should I ask my employer to file it on my behalf? Much cost involved?
You can file the FOIA (G-639) yourself. I don’t know the cost but you can check out the form on USCIS website.
I-824 is the H-1 amendment which I don’t think relates to your case.
Trying to get the approval copy from the immigration team of my previous employer. Meanwhile, didn’t wait for applying the foia request for the approval copy. Waiting for acknowledgement and number. Today out of curiosity called USCIS call center for knowing the approval period Information twice. Both the times the representative told me, since u r d beneficiary, we cannot discuss the case details with you. This made me worried, when they can’t even share this information, will they provide the approval copy for my foia request?
I have seen some attorneys suggesting that one can file FOIA to get the petition details. Like I said in one of the earlier posts, if you can’t get this done, then you can submit old receipt number and print out of online status for that receipt. USCIS has access to all the past petitions. So why they will enforce submission of the previous petition copy. If you look at I-129 form, it just asks for receipt number but not the copy (although they are submitted to strengthen the case).
I strongly agree to you Saurabh, but these employers would use the word “as per policy”, only if you have the approval copy, we can proceed with your case. I’m trying my best, with the hope for best…Thank you so much for your replies…they are more than support
Again i called USCIS call center today and got to know that my petition was valid from 28-feb-2012 to 27-Feb-2013.
still i’m eligible for cap exemption right ?
Yes, you are.