H1B Petition Approved - Employer is not interested to hire

R

robvic1979

New Member
Dear Friends,

A US employer 'A' filed h1b petition and it was approved in early oct 2012 but they are not giving me go ahead for visa stamping. It seems they are not interested to hire me as when i contacted employer 'A' after petition approved, i was told that end-client didn't need resource anymore and they were still trying for my placement there. Its about 3 months now but still no positive response. The situation has become worst now because my contract is expiring with current employer by end of this month and i didn't search for new job here assuming i would join this employer 'A' before contract ended.

Is it posibble if i find any other US employer 'B' (who shows interest) and ask them to file transfer using my approved petition? And is it practical, i mean, do people go this way? Luckly I got scanned copy of I-797, I-129 and LCA from employer 'A' right after h1b approval. I am currently in my home country.

Is there any expiry date of my h1b petition before which i would have to apply for visa or find new employer 'B'?

does employer agree to apply for h1b transfer? I am in impression that it wouldn't be big headache if employer 'B' files the h1b transfer with premium processing.

Waiting for your suggestions.

Regards
 
In order to transfer, you should be in a valid H1 status which requires you to be in the US and be employed and get paid on that H1 status. Documents showing employment and salary are required as part of H1 transfer. Since you are not actually employed under H1, you cannot seek a transfer.
Any future employer B has to file for a new H1 petition.
 
Hi nkm-oct23,

Thanks for your reply. Sory i am layman and dont have much idea about visa types. Lets say i could able to find a new employer 'B' who offers me job, could that employer be able to file h1b petition under premium processing without waiting for FY 2014 cap? And if it would be possible, could i go for visa stamping after petition is approved without any delay?

regards



nkm-oct23 said:
In order to transfer, you should be in a valid H1 status which requires you to be in the US and be employed and get paid on that H1 status. Documents showing employment and salary are required as part of H1 transfer. Since you are not actually employed under H1, you cannot seek a transfer.
Any future employer B has to file for a new H1 petition.
Click to expand...
 
You will be subject to annual cap since you don't have a valid H1 status to transfer from. USCIS will treat it as a petition for fresh H1.
Once your new H1 for employer B is approved, you can apply for a visa at a nearby US consulate. You don't have an valid H1 visa sticker on your passport, do you?
 
If employer B can prove there is valid bonafide job for you, H-1B petition can be approved BUT if you are not getting paid from employer A your extension of status might be denied, therefore you might have to step out of country for new H-1B visa endorsement. I dont think he would be subject to new H-1B cap.
 
whitemimauz3 said:
If employer B can prove there is valid bonafide job for you, H-1B petition can be approved BUT if you are not getting paid from employer A your extension of status might be denied, therefore you might have to step out of country for new H-1B visa endorsement. I dont think he would be subject to new H-1B cap.
Click to expand...
Cap applies to anyone NOT currently in a valid H1 status if the employer is not a non profit or if the applicant is not a graduate from a US university. OP is not in a valid status, he just has an approved H1 from an employer who no longer needs his services. OP never worked on any H1 so far.
 
nkm-oct23
I beg to differ. I do not think he would be subject to CAP since he was previously granted H-1B status within past 6 years. Please see form I-129 page 19 part C question g.
 
H1B status is granted in the form of an I-94 with H1b annotation. Simply having H1B approval does not confer H1B status. OP never obtained an I-94 for H1B since he never entered US.
 
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When an H-1B is approved, a number has been pulled from h-1b quota and allotted to individual beneficiary. I am quite positive he would not be subject to numerical limitation should an h-1b is required to filed on behalf of beneficiary from different employer. Since he is outside the country, it should be filed as new employment and opt for consular processing.
 
whitemimauz3 said:
When an H-1B is approved, a number has been pulled from h-1b quota and allotted to individual beneficiary. I am quite positive he would not be subject to numerical limitation should an h-1b is required to filed on behalf of beneficiary from different employer. Since he is outside the country, it should be filed as new employment and opt for consular processing.
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H1b number is allotted only when the beneficiary is admitted under that category. Please see Ralf Wiedemann's reply to this very question in this link:

http://www.avvo.com/legal-answers/checking-if-old-unused-h1b-petition-is-still-valid-935324.html
 
You mean USCIS would wait until a person is admitted in USA on H-1B approved petition filed on his behalf and If they dont turn up in USA then approve senior most petition in queue. I dont think this is realistic. How could they keep track of utilized or non-utilized number by following this approach.
 
whitemimauz3 said:
You mean USCIS would wait until a person is admitted in USA on H-1B approved petition filed on his behalf and If they dont turn up in USA then approve senior most petition in queue. I dont think this is realistic. How could they keep track of utilized or non-utilized number by following this approach.
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Upon admission of a H1B beneficiary USCIS matches up petition approval number with I-94 number then update quota.
 
This memo does not addresses issue which we are discussing and yes current h-1b workers are of course exempt from CAP. As I told you earlier form I-129 page 19 part C .g clearly says "The beneficiary of this petition was previously granted status as an H-1B non-immigrant in past 6 years" Now the question is how are we interpreting the term 'granted status' - whether if some one should have been admitted under H-1B status to be called as granted status or change of status while in USA OR mere approval of H-1B on his behalf can be construed as H-1B status was granted. For some reason I dont think it is realistic to assume that USCIS would determine whether h-1b number has been utilized by finding out whether an individual is admitted under H-1B status at the port of entry for consular processing cases.
 
Status is something USCIS grants to foreign persons in the US. Terms like Adjustment of Status, Change of Status, Extension of Status, Out of Status are all used by USCIS in relation to someone who is in the US. All these terms mentioned require an I-94 to go with it. YOu go out of status when your I-94 expires. When you extend status, you get I-94 with a new date on it. When you adjust status to that of LPR, your I-94 (whoch should be valid at the time of AOS application) is converted to a permanent resident Alien registration. A person living outside US has no status in the US.

The form I-129 also uses this definition of the word status and the question on page 19 part C should be answered to conform to this definition. Granting status here means USCIS permitted entry of that individual under H1B by providing him/her an I-94 annotated with H1B.

I think this item on the form I-129 is for someone who comes into US under H1, converts to another status like F1 or H4, then finds a job and converts to H1 again within 6 years of original H1. In such cases the quota cap does not apply to the F1/H4 to H1 change of status since the quota has already been captured.
 
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Please read this ACT 214(d) for numerical limitation. It clearly says approval of petition. (7) 2/ Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422/0-0-0-3594.html
And there are multiple links addressing this issue
 
whitemimauz3 said:
Please read this ACT 214(d) for numerical limitation. It clearly says approval of petition. (7) 2/ Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422/0-0-0-3594.html

And there are multiple links addressing this issue
Click to expand...

It only states that at the time of approval of the current current petition, if the beneficiary has already been counted once in the previous 6 years, he will not be counted again towards the numerical limit.

The procedure to claim this exemption is clearly stated in page 19 part C. If OP's new employer applies for another H1B, the only way he can escape numerical limit is if OP has been counted once before. The factors which determine if OP can claim this exemption is listed in options under part C. If OP cannot meet any of the criteria in section C, he cannot claim this exemption to quota limits. Bases on OP's original post, he does not meet ANY criteria listed in part C.

Please also refer to (9) 15 A in your link.
 
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He had a petition that was approved before. Thats what it says about. thanks any way, I think we had a productive discussion. Lets wrap up.
 
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