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Immigration Issues/OOC H1B visa application

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Question
QUESTION: Hi sir,

I have worked on H1B visa in the US for 2 years between the period 2006-2009, my current employer wanted to file for my H1B visa now in the out of cap category but accidentally filed it in the general category on 13th march 2013, i want to know if my application can be withdrawn right now from the USCIS and re-filed under OOC category? please let me know if its possible and how long would it take? for a fresh H1 the start date for employment would be 1st oct wherein i want to start asap hence would prefer the OOC processing.

ANSWER: Hi,

You would not be subject to the visa cap as you held H1B status at some point in time within the past 6 years. If you were present in the U.S. when the employer filed the H1B petition, the employer would normally have filed the H1B petition requesting either change of status (COS) or extension of status (EOS). If you were not present in the U.S., the employer would have filed the H1B petition requesting consular processing.

Incidentally, even if the employer filed the H1B petition requesting cos or eos but you were not present in the U.S. when it was filed, the USCIS would still approve the H1B petition with consular processing.

In any event, as you are not subject to the visa cap, the employment start date can be earlier than Oct. 01, 2013.

The USCIS does not refund the filing fees if an H1B petition is revoked/withdrawn.

---------- FOLLOW-UP ----------

QUESTION: Thanks for your prompt response, i am currently in India and my new employer has applied for my H1, my question is since my employer has by mistake filed me in the fresh H1 category how will the USCIS know that i have already held an H1before? Is it possible to write to them and get myself converted into OOC category if by chance i am picked in the lottery?

Answer
If the USCIS believed that the case was cap-subject, the USCIS would have returned the H1B petition back to the employer with instructions to file the H1B petition no earlier than April 01, 2013 and to request an employment start date no earlier than October 01, 2013 as well.

If the USCIS has issued a receipt notice to your employer, that means that the case is not subject to the visa cap (if it was subject to the cap, it would not have been accepted at all by the USCIS prior to April 01).

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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