Cap exemption for next 6 years if counted once under H1 B cap

My employer has applied for H1 B under last year’s cap and I received an approved H1 B petition in Nov’2012. However, my employee is not letting me do the stamping. My husband has recently travelled on H1 B to US that was filed by the same employer(as mine). Now I have few questions :

  1. If I apply for H4 then is it possible that my employer cancels my H1 B approved petition.

  2. If cancelled, will I still be eligible to apply for cap exempt H1B once I have travelled to US on H4.

  3. Also, one of the consultancy in US is assuring me that they would apply H1 B for me under cap exemption once I travel on H4. They would be charging premium processing and attorney fee from me, they will bear all the other H1 B fee. Is it legal?

Please help me in understanding all these. Thanks in advance.

Ok. I’m definitely not an expert here. But I’ve been through some of the situation described above so will put in my thoughts:

  1. Yes your company can withdraw the petition if they want to. But will they do it is all left to them and the process that it involves. Only way to find out is to ask the employer directly. It might be a good idea to get all petition documents from them if you can. They normally give it only when you go for stamping.

My previous company did not withdraw my approved H1-B petition even though I quit after getting it stamped and never travelled for that company.

  1. Yes, if you have gone through a cap for h1-b once and been approved then you are eligible to be cap exempt if you file again within the next 6 years. Also such a transfer petition can be filed any time of the year.

  2. I know its illegal for the company to charge the employee for the H1-B fees. But yes, they can charge you for the premium processing. I’m not sure of the attorney fees though. Mine did not charge me for the attorney and I did not use premium processing. Unless there is a need to I’d advise against it. My petition result came through within 6 weeks without the premium processing which is very expensive.

Note: I had an approved and stamped H1-B visa which was never utilized since I quit the company. A company here filed a cap exempt H1-B transfer I-129 through regular processing. I had all the documents from my previous H1-B (I-797) with me since I had gone for stamping.

Hope this helps

Thanks a lot Anita!!! This would definitely help me. Just one more query

  1. I am having all H1 B documents(I-797) with me, but if in case they withdraw my H1 B,will I still be counted under cap exemption?

Interesting question…though I’m not 100% sure, I would say no.
I’m thinking, if your company withdrew your approved petition it is equivalent to canceling/nullifying the 1st application which means cap becomes irrelevant. But one more reason I say no is because when my current employer decided to file for my cap exempt H1-B, I remember the attorney asking me if my prev employer withdrew my approved petition. I dint know and there was no way to find out from uscis either, only the employer could tell. So she told me that if it’s been withdrawn then the transfer petition she’d file now would get rejected and then I’d have to go through the 2013 lottery.
That tells me I wouldn’t have been cap exempt anymore.

I know asking the employer if they will withdraw seems to be a waste of time since they’d probably say yes just to keep you in line especially if you’re planning on quitting:) but still why don’t you go ahead and ask them. I’m not saying they give you the truth but no harm in asking. The rest of the decision is yours to make.

Note: I approached my current employer to file a cap exempt h1-b based on the discussions on this forum when there were many other forums who said my case would not be cap exempt.

I agree w/ Anita’s initial comments except

  1. The company can legally ask you to bear both premium processing and attorney costs.
  2. If the employer withdraws the H-1 petition, you can still file for cap-exempt petition. When the petition was approved, USCIS allocated 1 slot to you from the available 65K petition slots. If the employer withdraws the petition, then that number is not returned to the pool - which means you can still use it for cap-exempt purpose. However, if USCIS revokes the petition b/c of fraud etc then you cannot use that petition for cap-exempt purpose.

Hope that helps!

Ah! thanks for correcting my incorrect assumption about cap-exemption Saurabh. I’d approached my employer for a cap exempt H1-B based on your respones on this forum so I’m glad this makes things simpler for another person too.

Thanks a lot both Saurabh and Anita!!!
Anita, Can you please let me know if you approached your current employer through any consultancy? It seems that you recently got your H1 B done. Some of the consultancies are giving me a job guarantee once I enter the country, but I am just afraid whether I would get a job over there or not. I am having 3.5 years of experience and working in an Indian IT firm.

Actually I entered US on L2. So I applied for an employment authorization document(EAD) first and used that to find a job. After working on EAD for a couple of months, I put my case forward to my employer who ran it by their attorney, confirmed that it was worth pursuing and then filed for COS :slight_smile: . I’ll be honest and tell you that there are no guarantees about the job. It took me over a year to get one after I came here - but then I had restrictions in terms of relocation, commute etc etc. You’ll need to decide whats best for you based on your situation, so here are a few things to consider:

  1. Can you take a leave of absence from your employer there(instead of quitting) and travel here on H4 for a couple of months. Come here and find out how is the job situation and then decide what do you want to do
  2. Since I don’t know - assess if the city your spouse is travelling to has IT jobs. Ex: California, Minneapolis, Phoenix, NewYork, New Jersey would have better job prospects(and transport facility) as compared to other places. Not saying there are no IT jobs elsewhere, just that there would me more openings in one location as compared to another.
  3. If you get a job at a different location as compared to your spouse would you be willing to relocate atleast for sometime before you find a job at the same location.
  4. Consultancies/Clients tend to ask if you have any work experience in the US itself. Its considered a positive, but I myself dint have that when I started looking for a job, so dont let that dissuade you.

Here am assuming that you are getting your H4 stamped too… :slight_smile:

But I’d suggest that you think before you make a decision. Staffing agencies can promise a lot of things, you’ll just need to take it with a grain of salt. You could get a job within a month or it could take you a year. Just be prepared in case the latter happens.

All the best!