H1-H4-H1 Portability

[AARCEE]

Mr. Khanna and Friends,
I am in a very very odd situation.To my dismay i could never get any additional information from any of the immigration portals and from any of the immigration lawyers. I had no choice but to google. and finally i came here.here's the case:
1.I finished my master's in communication Tech in june 2004.

2.An unscrupulous employer(consulting company) hired me and filed my H1B on september 2005.I paid for all the expenses.

3.H1B got approved for the position of Network Admin. on NoV 2005.

3.He couldnot find me a contract.and he would not let me transfer.I had some willing companies who would take me in and transfer my h1B but not willing to do corp-to-corp with my employer.

4.i waited for almost six months .I decided to take it into my own hands and leave him..He threatened me that he'd report me to Uscis.

5. I was so frustrated i decided to leave the country.I went back to my home country in june 2006.My wife was working for a company here in United states.She asked me to come back on H4. she came there and we both went to the consular for visa stamping. Our Visa got stamped.

6.I came to US on H4 on october 2006.I am still in H4.

7.I got a call from a company..went for an interview.They are willing to hire me.

8.They asked how i could join their company as an employee..They are ready to sponsor my h1.

Here the question arises,

1. Do i need a new H1?
2.Do i need a H1 transfer?
3. Am i Cap Exempt?
4.If it is a tranfer i might need paystubs which i dont have from my previous employer/
Please suggest..


I read a similar forum by GREAT GURU..From your replys i could see i qualify for cap exempt..But i am not sure..

[mukeshinmd]

I'm not a legal expert, but again based on the information / experience I've, what i can tell u is,
1. I think you need a new H1B.
2. No you dont need H1b transfer as you entered this country on H4.
3. You cannot be cap exempt, unless the sponsooring institution is a Non-profit, academic institutions.
4. I dont think your situation would now fall under h1 trasfer, as u entered this country on H4.

mukeshinmd
rahasiam.com

[AARCEE]

Mukeshinmd,
Thanks for your reply.
I am still not convinced though.When i conferred with lawyers, they told me that i am a cap exempt because i already had an H1B before.I need more responses please..

[voldemarv]

Originally Posted by AARCEE

Here the question arises,

1. Do i need a new H1?
Yes
2.Do i need a H1 transfer?
There is no such thing as H1 transfer. Each H1 is new.
3. Am i Cap Exempt?
I think so. You already have been counted against H1 cap in previous 6 years.

4.If it is a tranfer i might need paystubs which i dont have from my previous employer/
Don't know about that

----------------

[ellemoi123]

Did you had any paystubs when you went for visa stamping H1 to H4? BTW, which consulate did you visited? I am in the same boat.

Thanks.

Originally Posted by AARCEE

Mr. Khanna and Friends,
I am in a very very odd situation.To my dismay i could never get any additional information from any of the immigration portals and from any of the immigration lawyers. I had no choice but to google. and finally i came here.here's the case:
1.I finished my master's in communication Tech in june 2004.

2.An unscrupulous employer(consulting company) hired me and filed my H1B on september 2005.I paid for all the expenses.

3.H1B got approved for the position of Network Admin. on NoV 2005.

3.He couldnot find me a contract.and he would not let me transfer.I had some willing companies who would take me in and transfer my h1B but not willing to do corp-to-corp with my employer.

4.i waited for almost six months .I decided to take it into my own hands and leave him..He threatened me that he'd report me to Uscis.

5. I was so frustrated i decided to leave the country.I went back to my home country in june 2006.My wife was working for a company here in United states.She asked me to come back on H4. she came there and we both went to the consular for visa stamping. Our Visa got stamped.

6.I came to US on H4 on october 2006.I am still in H4.

7.I got a call from a company..went for an interview.They are willing to hire me.

8.They asked how i could join their company as an employee..They are ready to sponsor my h1.

Here the question arises,

1. Do i need a new H1?
2.Do i need a H1 transfer?
3. Am i Cap Exempt?
4.If it is a tranfer i might need paystubs which i dont have from my previous employer/
Please suggest..


I read a similar forum by GREAT GURU..From your replys i could see i qualify for cap exempt..But i am not sure..

[StressTestInUSA]

Hi aarcee..

from what I think and understand..even if you don't fall under the H1 cap exempt since you were earlier on a H1 for a period of 1 year..and if you are asking INS for the remaining 5yrs of H1..there is always a a possibilty of INS asking for atleast the last few paystubs to show that u maintained your last H1.

Maybe u can take a chance and do this, but if you r asked for paystubs then u might be hitting a dead end. I know the frustruation..u need to wait for the new H1 quota next April..(long way..)

Since u have a US Masters here..most probably they might not probe much and ask for your paystubs...but if they ask and if u still have a valid H4 visa..go back to home country and comeback on H4..