Can new employer initiate h1b transfer with expired I797 petition?

USA H1B Visa
1

Hello,

My current employer is interested in initiating h1b transfer but H1b approved petition (I797) expired in September 2022. Is it possible to transfer under cap-exempt ? I am working from India, I did my MS and worked in US before moving to India. I have never held H1b status, this is for first time stamping. Can someone advise me on this ?

Thanks

2

Yes, your employer can file cap-exempt petition based on your prior approval of H1B even if you never worked on H1B status.

3

Thank you. I have another query, my case is under 221g pending with the old employer. Do I have to withdraw the case before proceeding with the transfer ?

4

No you dont need to. Once you leave your current employer they will withdraw your petition.