H1B Expired- Picked in 2010 not stamped. Outside Cap H1-B Possible?

Background :

I have applied for H1-B on Nov - 2009 through employer A and it got approved on Mar - 2010 . But I did not go for stamping and I don’t have any approval notice with me . I have only receipt number . I am not sure whether it is revoked or not . I came to US on LB Visa on Jan 2011 though employer B and my L1-B valid until Oct - 2013 .

Queries :

1 ) If I want to apply for H1-B , do I need to apply fresh 1 through 2013 cap quota ? ( or ) my old H1-B petition number can be used for COS?

2 ) Do I need to contact employer A to proceed further ?

3 ) If my H1-B can be done by using old petition number , what will be the validity of new H1-B ?

  1. You can use the old petition. An employer will have to file a cap-exempt petition for you along w/ COS. They can submit old receipt number as proof that you have already been counted in the cap in the past.

  2. Not required, but if you can get the approval notice from there - it would be better.

  3. The new H-1 will have a term determined based on what new employer requests and what USCIS seems appropriate. Overall, you can spend only 6 years on H-1 and L-1 inside US.

Thanks a lot Saurabh…Once my H1-B get approved with outside cap, do I need to go back to India to get my H1-B stamped?

If the COS gets approved, you will get a new I-94 (same number as current L-1 one) which will mark your status as H-1. You can start working on H-1 using this I-94 and don’t need to go for immediate stamping. Next time you travel outside of US, you will have to get H-1 visa stamped in order to return and work on H-1.

If COS is denied (or is not applied), then you need to get H-1 visa stamped.

Thanks Saurabh…I have I-94 till Dec-2013. If my H1-B get aproved along with COS, what will be the validity of my H1-B? Do I need to go outside US to get stamping after Dec-2013?

Your employer will have to request H-1 term in the I-129 document. USCIS will approve it for the same term or a different one based on their review and how much time you have already spent in US on L-1.

You need to go for stamping anytime you want to return and work on H-1. So if you leave US b/w Oct and Dec, you still need to get H-1 visa stamped. If you leave US prior to Oct, then again you need to get it stamped but you cannot enter US until Sep 20th (earliest date to enter on H-1).

Does that clarify?

Thanks Saurabh…If my H1B(cap exempt) approve along with COS, what will be the timeframe to join to the new employer? Because I need to give notice to my current emloyer.

You will be considered to be on H-1 status from COS approval date. If you work for L-1 employer for couple of more weeks after that, it may be ok in the long term (still it will be USCIS discretion if they question this in future). Check w/ your H-1 attorney about this as well.

Hi Saurabh,

Hope you are doing good. Today I have got selected for XYZ client and my employer told that he is going to start processing for my H1B by showing client letter to USCIS.

  1. May I know howlong time it takes to get the H1B visa(premium) with COS including LCA?

  2. What will be the worst case for not approving/denieing Visa? Because I should prepare for it?

  3. My employer told that if they apply H1B(premium), there will be more chances to get approve?

  4. Do I still need to go for Councelor Interview? What are the chances are getting COS approve if they apply with client letter?

  1. LCA takes around 1-2 weeks. H-1 petition processing in PP takes up to 15 calendar days. If RFE is issued, then it can take longer.
  2. Are you referring to reasons for not approving the visa? There can be several (too many to list)
  3. IMO, chances neither improve nor deteriorate.
  4. As you are currently inside US and if COS gets approved, then you don’t need to go for stamping immediately. You can start working on H-1 from COS approval date.

Thanks Saurabh…I am worried of point #4 on my list. will there be any rejection cases of COS if my employer apply H1B(PP) along with client letter ? Can I work with only H1B approval?

If my COS get rejects, what will be the timeline to get get stamped in my passort?

I do not want to leave country immidiately as my new born kid is yet to get the passport and PIO card. Please advise

COS is denied when USCIS determines that you didn’t maintain legal status at the time of H-1 filing, or if you travel outside of US while it was pending. Otherwise, it usually gets approved.

If COS gets approved, then you will remain on current status until you file a separate COS, or enter US on stamped H-1 visa.

Hi Saurabh,

My employer submitted H1B(PP) and today status showing as RFE. When I called customer care number, automated message saying that information required on I797. May I know what is that? My employer submitted Vendor offer letter. Is USCIS looking for Client letter?

If USCIS asks Client letter, I am not sure whenther Client will provide the letter or not as I am not yet joined.

I am worried. Please advise.

You should get in touch w/ employer/attorney to know what they are asking for in the RFE. If they are asking for client letter, then you will have to submit the letter b/w Vendor and the Client (I assume you are in EVC model).

Hi Sourabh,

when I verify RFE, I got scared. All points are no where related to me. Instead of my documents my employer submitted some other documents as a proof. When I ask the reason to my employer, he was misleading me by saying something. Now he submitted all Original and required documents.

  1. How USCIS react on my case?

  2. Will they ignore Old(unrelated) documents and conside new documents?

  3. What is the chance for getting the approval?

  4. Since this is capexempt, Can I apply another H1B through other employer if this H1B get rejects? Is that possible.

I am in consuse. Please help and reply asap.

Sorry for the late response, but what happened to your case?