H1B Cap Applicability Question

H

h1bquest

Registered Users (C)
Hello,

I went from H1-B to H4 visa in September 2003. I was on my H-1 for 3.5 years with a company in Maryland. I decided to quit my job, switch to H4 and move to Ohio since my husband was employed there. My H4 status was approved in December 2003. However, in January 2004, I found a job in Ohio and my lawyer filed for a new H-1B. Based on portability regulations, I have begun working at this new company upon getting the receipt from BCIS.

Even though I am a H4-H1 case, this will not be my INITIAL employment. Am I still subject to the H-1B cap? Thanks in advance for any information.
 
I went from H1-B to H4 visa in September 2003.
I was on my H-1 for 3.5 years with a company in Maryland.
I decided to quit my job, switch to H4 and move to Ohio since my husband was employed there.
My H4 status was approved in December 2003.
However, in January 2004, I found a job in Ohio and my lawyer filed for a new H-1B. Based on portability regulations, I have begun working at this new company upon getting the receipt from BCIS.
------ It means he filed Change of status from H4 to H1B, you were NOT supposed to work, as your H1B from H4 status has not been approved. it seems to me that once COS is filed you should start work only after approval of H1 status. If it was from H1 to H1 transfer you would have been OK to work with H1 to H1 transfer filing receipt.


Even though I am a H4-H1 case, this will not be my INITIAL employment. Am I still subject to the H-1B cap? Thanks in advance for any information

**** I suspect some problem for you as still you are on H4 status and working, you need H1 approval or change of status to be approved before working, go to your lawyer
 
Hello,

Thanks for your reply. But I have already confirmed with 2 lawyers about my working ability. Under portability regulations, you are not only allowed to work (once you get the receipt) in a direct H1-H1 transfer but also in a H1-H4-H1 case.

However, if I were a fresh H4 without any previous H1 employment, I would not be eligible to work till my H1 got approved.

SoO this issue is not my concern. I am concerned if I am subject to the cap or not. If I am, I would like to go for premium processing immediately. Else, I don't see the point of spending $1,000.

Any answers?
 
If it is treated as a portability case you are not subject to cap. Wonder why lawyers are giving bad advice nowadays, ginnu.
 
Thank you, Raj. That was very helpful and also gave me peace of mind. Based on the info in that link, I am not subject to the cap.

Thanks again.
 
Please note that I am not an attorney, and that you are using the information on your own accord! Good luck!
 
Raj1994 your intrepretation is grossly wrong. Q5 talks about 6yr chunks for people who apply for their second or subsequent 6yr H1 after an year's stay outside US. Please dont mislead.
I think this will be a popular question in the famous monday chat!
 
h1bquest

Thanks for your reply. But I have already confirmed with 2 lawyers about my working ability. Under portability regulations, you are not only allowed to work (once you get the receipt) in a direct H1-H1 transfer but also in a H1-H4-H1 case.


----------Your 2 or 3 lawyers gave you wrong advice if it is Change of status from H4 to H1B then you need to work with the employer ONLY after the H1B status has been approved, just filing the change of status from H4 to H1B does not give you permission to work, you need H1B to be approved for the new employer who filed COS. How your lawyer can give you grantee that change of status from H4 to H1b will be approved?
What if COS is not granted?
Till the time H4 to H1B status is not approved you are not supposed to work. Go to knowledgeable good lawyer, your wife is working on H4 status and that is unauthorized work, as she has no H1B approval notice approved for the employer where she is working.
 
Jaxen:
Here is verbatim from AC21 June 2001 memo:

"B. AC21 103 and 114 - Exemptions from the H1B FY cap ...

(e) beneficiaries who are currently maintaining or who have held within the last 6 years, H1-B status, and are ineligible for another full six year stay as an H1B"

Note that you can restart your 6 year clock even though you may not have stayed 6 years on an H1B. The second 6 year term need not follow a previous 6 year term (plus one year of remaining ouside). You can restart even after 2 years, for example, if you go out for a year. But if you dont restart your clock (by going outside for a year or more), then you are ineligible for another full six year stay as an H1B. And so, you are exempt from the cap according to the above note.

What am I missing? Has there has been another INS/USCIS memo on this? I pointed out to the webpage because the question 5 wording seems to confirm this, although the question itself talks about something else.

Ginnu:
The attorneys for h1bquest have interpreted AC21 memo to work in his/her favor. I dont agree with their interpretation. Here is verbatim from section D of June 2001 memo:

"On the one hand congress does not appear to have limited portability benefits only to those who are working lawfully in H1-B status at a time a new employer files a new H1-B petition on their behalf. Nor on the other hand, does congress appear to have extended portability benefits to any alien who has ever held H1-B status, no matter how long ago or what the alien's current status in the United States. The service therefore expects to propose a rule that would afford H1B benficiaries, who are no longer working for the initial employer, some reasonable period of time, such as 60 days after leaving the initial H1B employer to begin working for a new H1-B petitioning employer under portability provisions. It is important to note that such a proposed rule, would not take effect until it has been published as a final rule ..."

Clearly as of June 2001, there was no rule to allow for H1B-H4-H1B portability, but there was consideration on part of the then INS. I guess one could always try to interpret law in one's favor and see if it works.

h1bquest: why not go for premium processing and avoid the problem with the cap?
 
Agreed Raj1994. It is in the intrepretation. Also note that (I am still trying to find the link) April 2002 some of these AC21 provisions were changed. But the intrepretation about Cap and Portability seem to pass muster.
But like you suggested I would not risk not going thru Premium processing.
 
I've gone through this discussion with great interest. I asked my lawyer to file for premium processing today. The lawyer confirmed what that I am not subject to the cap and the fact that it was perfectly fine to begin work upon obtaining the receipt.

However, I think that I wouldn't risk taking a chance and so I've gone ahead with premium processing. I shall update everyone if I get anymore information on this issue.
 
I have a similar situation. I am J2 (my husbands dependant who is on J1) working on EAD (Ead expires mid march). My employer filed for an H1-B for me. A month after that my husbands employer filed for his H1-B. He didnt include me in his application for H4 as my H1-B was already filed. Now my husbands H1-B got approved while mine is still pending (I got an RFE). So I thought my status as J2 ended as soon as my husbands status changed from J1 to H1-B, and so I wont be able to work on my EAD while my H1-B is pending. When I talked to my company's lawyer, he assured me I am ok to work as I have a receipt showing that my H1-B was filed before my J2 status expired. I have some doubts about it, and am not sure of my status now. If I am not J2 anymore, what is my status? As my husband did not include me in his application for H4, I cant be an H4. Is it ok for me to keep working?
 
Hello,

Just an update for everyone regarding the case. My H-1B petition got approved today, 5 days after the receipt date under the premium processing program without any issues.

My lawyer got the confirmation via e-mail from the Nebraska Service center today. The approval notice is probably coming in the mail. It went so fast - the lawyer hasn't even received the receipt notice yet :)

My lawyer reiterated that mine was not a case subject to the cap, but there is no question that I am breathing much easy now inspite of spending $1000.
 
Smart move.

You guys are good!

You identified the issues and the ambiguity of the portability issue.

Lots of lawyers couldn't have done that.
 
Help / Advice

Hi All,

Does it mean from this that a person having an H1 in past six years but currently on H4 is not considered towards the quota ?

And the applicant can file his/her H1 as an H1 transfer even though his/her current status is H4.

I am asking this because my situation is exactly like the above.

1. Had an H1 from April 01 - Jan 04
2. Filed for H4
3. Looking for job ... so would I be considered to be a new H1 applicant or H1 transfer ?

Thank You,
H1BQuest
 
Same question from me: My new H-1B petition has recently been filed using PP but since I had H-1B status from Feb 2001 -> Nov 2003 I should be exempt from the cap anyway, right? I have been outside the US since November.

Thanks to all the amateur and pro lawyers :)
 
This seems to be a gray area, and different people will have different opinions on this. I am of the opinion that if you have held an H1 in the previous 6 years, then you are not subject to the cap, unless: (a) you went outside for a year and are restaring your 6 year clock or (b) you are moving from an exempt employer e.g. university) to an non-exempt employer. I refer you to my earlier posts in this thread and additionally to From I129W
http://uscis.gov/graphics/formsfee/forms/files/i-129w.pdf
See especially page 5, Part c "Numerical limitation exemption information", and specifically item number 5. It appears to me that items 1 through 5 are cases where the benficiary would be cap exempt, and item 6 would be to make sure that the beneficiary is indeed subject to cap.

Clearly, I dont see any question asking if the beneficairy is CURRENTLY in H1B status.

Again, this is my own interpretation, and I am not an attorney. Many people are asking the same questions. So if you have talked to your attorney, come back and inform the forum (although not everything you hear from your attorney could be true, but this at least gives some independent opinion)
 
H4 status

Guys,

If I apply for COS from H4 to F1 and then F1 is denied for some reason - am I still on legal valid H4 status (for the period it was originally issued for) after the F1 COS rejection or am i out of status?

Thanks
 
Originally posted by Raj1994
This seems to be a gray area, and different people will have different opinions on this. I am of the opinion that if you have held an H1 in the previous 6 years, then you are not subject to the cap, unless: (a) you went outside for a year and are restaring your 6 year clock or (b) you are moving from an exempt employer e.g. university) to an non-exempt employer.
Click to expand...
I spoke to my lawyer about this and it's true: I'm not subject to the cap because of my previous H-1B status.
 
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