H1B transfer using CAP-EXEMPT and simultaneous H1B application for 2017 CAP-SUBJECT possible?


So I have an old expired petition. Employer A’s attorney confirms it is a risky case but the Employer A is willing to go ahead and try and use the remainder years on that petition. There is no lottery involved here. He is trying to file it as a cap-exempt petition.

Risky because - It is not crystal clear as to how old a petition can be used, or at least I am not able to find that information on the internet. If any of you are aware please point me to that link.

In parallel, there is Employer B, whose attorney thinks it is risky to use the old petition and hence is ready to file a new petition in 2017 which will be cap-subject.

Initially both the employer’s demanded money (in the name of security deposit), but then agreed for a bank Guarantee which I believe is a lot safer as the money is in your account.

My questions are

  • I believe since both the petitions are from different year CAPs, this will not be the case of 2 employers filing a petition for the same employee but for different projects.

  • However if both the petitions get approved then what happens? In all probability they will not approve simultaneously. One will be before the other. What can/ should I do in such a case? Will the choice rest with me, as to I can pick either approval and proceed?

  • Will there be any legal glitches in having 2 approvals, one from 2017 cap and one from earlier cap. Is this possible in reality? or USCIS may deny the second application (whichever happens later) saying one approval is already active (the application which gets processed first)?

Please advise.

  1. It is not duplicate filing as you mentioned - 2 different unrelated employers

  2. Yes, you can decide to pick either and work for them

  3. I think it will ok as you have never been to US before, so there won’t be a discrepancy on remainder period b/w the two petitions.

If A is willing to file cap-exempt petition, maybe they can file now to see if it goes through. If USCIS accepts and processes it before April 1, B can file their petition as cap-exempt or you can decide not to file through them at all etc.

Hi Saurabh,
Thanks again, as always for the prompt reply. Wonder if you ever sleep… (assuming you’re in USA)

On #3 - one clarification, I was in the US for 1.5 years and returned to India in July 2009. Hence the Employer A’s petition case will be of the use of remainder years.

Employer B will be fresh petition (provided it gets selected in the lottery)

As you suggested, I have asked A, what is its plan if there is an RFE or denial in the cap-exempt case. Will A themselves file a fresh H1B in time (by April 1, 2017) so that I don’t lose this year’s cap or any other plan?

I also read from another reader’s comment who had an old petition from 2008 to 2011. He applied for a cap-exempt transfer last year July 2015 and he is till date waiting for a response from USCIS. Although he applied in Normal.

My employer is going to apply in Premium so Accept or RFE or Denial, we will get to know in 15-20 days time.

Am I thinking correct?

Also one clarification -
You replied “If USCIS accepts and processes it before April 1, B can file their petition as cap-exempt or you can decide not to file through them at all etc.”

I didn’t understand - if the cap-exempt one, filed by A gets approved by USCIS I can then use this petition with the remainder years and go for stamping once the petition is in my hands. No waiting till october.

However what did you mean by “B can file their petition as cap-exempt or you can decide not to file through them at all etc.”

How can B file it cap-exempt? I am contacting them first time and they plan to file a fresh one in 2017 cap.

RE your first post - yes that’s a good plan. Have it filed in PP to give enough time to know the decision before April 1.

RE your second post - if A’s petition gets approved, and you want to work for B, then B can file their petition as cap-exempt as well using A’s petition as reference point. If you plan to work for A only, then ask B not to file their petition and stop them from wasting money. That’s what I meant.