Can a revoked H1B be transffered to a new employer

Hi, I am on L2 visa since April 2015 and have EAD and working for employer A. A new employer B filed my H1b in April 2015 and it got approved. I kept working for employer A, as employer B was asking me to move to eask coast which I could not do. Now I got to know from employer B that my H1B petition has been revoked by UCIS in Nov’2015 because I did not start working from Oct 1st 2015 for them, I am not sure of it if UCIS revoked this petition or employer B revoked it. Question I have is that, can my current employer A, be able to use this revoked petition and get this H1 transfer in their name? Will I be cap exempt?

Do you know if your H-1 was approved w/ COS or w/o COS? What’s the current online status shown for your H-1 petition number?

I think it was filed as COS, Employer B is not providing me I-979 that he received. I am finding it hard to communicate with him. I just have the receipt number, and Here is the status of case .

“On November 23, 2015, we revoked the approval of your case, Receipt Number XXXXXXXXX, and mailed you a revocation notice. It explains the reasons for our action. Please follow the instructions in the notice and submit any requested materials. If you do not receive your revocation notice by December 7, 2015, please go to www.uscis.gov/e-request to request a copy of the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address”

If it was approved w/ COS, then you should have worked on H-1 from Oct 1. Not working on H-1 put both you and H-1 employer is jeopardy. So they are kind of justified in revoking the H-1 or they would have been blamed for not paying you H-1 salary.

Having said that, your H-1 seems to be revoked on the basis of employer’s initiation. So it may still be applicable for H-1 cap-exempt.

More importantly, you are out of status as your most recent I-94 was H-1 and it was revoked. You should talk to an immigration lawyer ASAP about possible remedies and its implications.

Thank you very much for your prompt response.
I am not sure if it was filed as COS, but my most recent I94 on CBP site still shows validity till April 2017, that I originally got got when I entered on L2 visa.
If my H1B employer would have filed for COS, would this I94 have changed?
If thats not the case, I can visit mexico border near me and re enter from there using my current L2.
Now when I re enter using my current L2, will my current still be able to file cap exempt H1B petition for me.
In any case will I remain H1 cap exempt for coming 6 years?

If it was filed w/o COS, then you are fine and still on L-1. The current employer can try to file cap-exempt petition for you using the previously approved petition.

Thank you Sourabh. Is there a condition that one has to work at least 1 day on H1B to get it activated, and then only he/she would be able to seek any cap exemption benefits out of it, in case it gets later revoked? And can my current company file for my H1B cap exemption without my H1B I-797, as employer who filed it did not provide me that and I am not sure if he is going to do that. I just have the petition receipt number.

There are some who say that you have to work for at least 1 day on H-1 in order to be able to use cap-exempt petition like this. This would activate your H-1 status, and allows for H-1 cap-exempt filing.

However, I have seen instances when person is able to successfully get cap-exempt petition even when they have not worked on H-1 previously for a single day.

The attorney can provide you a more concrete response once they look at your case.

Thank you Sourabh for all your help. The last question I have is, I do not have my H1B approval notice and the employer who filed my H1B is not providing me that. Can my employer file for my cap exempt with receipt number only? or is there way I can get copy of I-797?

I have seen cases where it was approved w/ just the receipt number. There is an article on main blog where someone has shared their similar experience.

Hi Sourabh,

I just found from the employer who filed my H1B, has filed it as Change of status. He did not inform me that as well he never provided my copy of new I94, any approval notice
and I never worked even single day for him. He is not giving me those document now as well. My L2 EAD and I94 are valid till Sep’2016. How bad is my out of status case now, Is there something I can do to adjust
my status now and Am I looking at some visa or entry denial for future travels?

Current situation is that, My L2 visa is expired but My wife’s L1A visa is still valid. It is because the petition on which my wife’s L1 was filed was expiring in Sep’2015, so while
going for visa stamping last year my wife got visa for 3 years but I got the L2 visa till petition expiry date.

Now my wife’s company will be filing her L1A individual petition and for my new L2 in March 2016. So once its approved we can go out of coutry and get new L1 and L2 stamped.

I am stuck in this situation and looking at my options here.

  1. Should do nothing and wait till March 2016, when my wife’s company files new L1 induvidual petition for my wife and me. And it will bring me back in status.
  2. Immidiately file for I539 using my wife’s I94, which is till Sept’2016 (I also have L2 I94 for same date)
  3. Leave the country immidiately, get new L2 stamped using my wife’s current L1 and her I94. (I am not sure if that is safe option because petition on which her L1 is, has expired)

Thanks

If your COS was approved but you didn’t work for H-1 employer and it was later revoked, then you are in serious trouble. Talk to an immigration lawyer ASAP.

Hi, Here is the update on my situation. I have filed for I-539 to be back in L2 status and it still in process by USCIS.
And have a followup question , Meanwhile during I-539 change of status is in progress. can a new employer file a CAP exempt petition to transfer my revoked H1B? Or do they have to wait till my change of status back to L2 gets approved?

They can file the cap-exempt petition. However, it may get approved w/ consular processing as you are currently out of status. This means you will have to leave US and enter on H-1B visa and new petition and only then you can start working for the new employer.

Did you consult an attorney about your L-2 COS?

We went to Mexico border to get new I94 for my wife as she still has valid L1 visa, Yes, I consulted the immigration attorney from my wife’s employer. He suggested to file I-539 for change of status and extension of L2 using my wife’s new I-94. They suggested to write a cover letter stating " that my H1B was filed as change of status and Because of personal issues I never worked for that employer and H1b was revoked in Dec’2015. I will like to continue my stay on L2. Please Grant this change of status back to L2 and extension of my L2 stay with the same validity dates as of my spouse "
Now I am not sure shud I continue working using my EAD that is valid till 2016 end. Or should I goto India and get a new L2 stamped using my wife’s I-129 & I-94 if thats a quicker way of getting back in status and then transfer my H1 to my current employer.

You should not work on EAD until L-2 COS is approved. If you need to start working ASAP, stamping is the quicker option. However, it may also run into issues.

Thanks Saurabh for quick response.
Meanwhile I just called USCIS and talked to the immigration supervisor, explained the situation. They checked my H1B receipt number and As per them I am still in status till my L2 I-94 because that H1B is revoked and it never went into effect.
I am thinking of taking an in person appointment at USCIS office and get more clarity on the case. I am not sure if immigration officers are well qualified to answer such questions.

I would suggest talking to immigration lawyer and taking their advice. They are best qualified to handle your situation.

Hi ,

I am just planning to go alone Mexico border and return, can you pls explain how/where to travel, appreciate your response
Tx