You are here:

Immigration Issues/L1b to H1b COS with expired H1b approval

Advertisement


Question
QUESTION: I have question regarding H1b cap exempt. I got my H1b approved(Class Consulate POE) from Employer A in 2009, and approval was valid from 10/01/2009 to 9/24/2012. I never went for h1b visa stamping with approval.

After this my Employer B did send me to US on L1b in Feb 2011, which is going to expire in Jan 2014. As L1b extension have lot of rejection these days so want to use Employer A's approved H1 for l1b to H1b COS.

So want to know if i can still use employer A's expired H1B approval for CAP exempt ?
If Yes, any issue anyone see with USCIS approval for this kind of case ?
Also as h1 approval class was consulate/POE, so do i need to go back to my home country to get it stamped ?

ANSWER: Hi,

As you were never physically present in H1B status in the U.S., you are subject to the visa cap. Thus, the employer would be required to file an H1B subject to the cap. Unfortunately, as the cap has already been reached in April, 2013, the earliest that the H1B petition can be filed is April 01, 2014 with employment start date of Oct. 01, 2014.

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

QUESTION: Thanks a lot for your input Ajay. Really Appreciate.

Can you please point to any USCIS link where this clause of physical presence is mentioned. This is just because my company lawyer is saying that it's not a issue, as I have been already counted once against cap so they will be able to file L1b to H1b COS without any issue. I am really confused and don't want to take a step which can have negative impact on my visa.

Answer
Hi,

See the following link: http://www.uscis.gov/h-1b_count

Under the Section of "How to Determine if your H-1B Petition is Subject to the FY 2014 Cap"

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process FY 2013 and FY 2014 petitions filed to:

   Extend the amount of time a current H-1B worker may remain in the United States.
   Change the terms of employment for current H-1B workers.
   Allow current H-1B workers to change employers.
   Allow current H-1B workers to work concurrently in a second H-1B position.


Actually, you do not have to currently be in H1B status, as long as you were in H1B status at some point in time within the past 6 years. (It appears that you were never actually in H1B status, since you did not enter the U.S. with an H1B visa, or were not granted change of status to H1B within the U.S. itself).

Immigration Issues

All Answers


Answers by Expert:


Ask Experts

Volunteer


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.

©2016 About.com. All rights reserved.