Employer cancelling my H1, how to avoid cancellation

This April an employer (who isn’t my current employer), submitted a H1 petition for me. The same got approved this June (06/2015). I have my receipt number.
Currently I am in India and the employer wants me to travel this month, I cannot travel for next 3-4 months. Employer has informed me that, he will get my H1 cancelled if I cannot travel this month. I don’t have the original petition, employer has the petition. Also, my Visa isn’t stamped.

  1. Can an employer withdraw/cancel a H1 petition?
  2. What can I do to avoid cancellation?
  3. In case if this H1 is cancelled, will I be CAP exempt? (Can I evade lottery?)***
  4. If another employer is willing to get my H1 transferred, Can I get it transferred?
    4b) Will cancellation of H1, have any impact on this transfer? (There is an employer, who is willing to get my Visa transeferred to his company, however, he is apprehensive that once the original employer cancels my H1 petition, USCIS will revoke the transfer, is this a genuine risk?)
  5. What would be the best approach to get it transferred to a new employer.
    a) Request the old employer to send the petition, use that petition to get it transferred to a new employer.
    b) Request the old employer to send the petition, get the visa stamped. Then ask the new employer to get it transferred? Considering I take this route, do I need to get my Visa stamped again, because of change in employer and transfer request was submitted after stamping?
  6. If I get my Visa stamped, then inform my employer that I cannot travel. He goes ahead and cancels my petition. In such a case, will I be CAP exempt. Because my Visa was stamped (Please note I am not travelling, just getting Visa stamped)****
  7. If I get my petition transferred, will that have any chances of rejection during interview?
  8. Is it true that, if I get my Visa stamped, employer cannot cancel my petition?
  9. What should I do to ensure that my employer losses the right to cancel my petition.
  10. If my employer cancels this H1, will that have any impact on my future petitions? ***

Thanks in Advance. Please let me know if I am missing anything that I should consider in current scenario.
All I want is, to hold a Visa and still not travel in the near future.

Thanks Again.

  1. Yes they can withdraw the petition

  2. It is employer’s discretion and you can only talk to him to not do it. You don’t have any other power w/ regard to this

  3. Yes, you can still be considered cap-exempt. Make sure you have the receipt notice or at least the receipt number.

  4. Transfer is nothing but cap-exempt petition. See (3) for additional information

  5. You should try to get at least the petition copy. If you do get visa stamped through this employer, then you don’t need to go for stamping again through new employer as long as it is valid and has not expired

  6. Same as (3) above

  7. There is always chances of running into issues during visa interview. However, “transferring” the H-1 doesn’t add another layer of complication to the visa interview

  8. Not true. They can still withdraw the petition

  9. You cannot do anything

  10. No

Too many questions I must say :slight_smile:

Hi Saurabh

Thanks a lot for responding.
Could you please confirm my understanding

  1. If I am in possession of petition copy, I can ask another employer to file a CAP exempt petition, even though the petition was cancelled by the employer.
  2. CAP exempt petitions can be filed anytime of the year. And it need not be during month of April (like new petitions)
  3. Because my Petition has been approved earlier, even if it gets cancelled now. I will still be CAP exempt, provided I have a copy of petition that was approved earlier.
  4. Currently, I don’t have my petition, all I have is the receipt number. However the new employer feels he cannot do much with the receipt number. Could you please let me know what can be done.

Sorry for troubling again, TIA


Cap-exempt petition can be filed anytime even after old employer has withdrawn the petition.

You can tell old employer that you want to appear for stamping and then receive their petition. Later you can decide whether you want to leave this employer, or go for stamping and then leave them, or not leave them at all.

Thanks Saurabh, this is useful information.