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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24458
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hello Judith, I am on a cap gap since July (which is when

Customer Question

Hello Judith,

I am on a cap gap since July (which is when my OPT expired) this year, with an approved H-1B. However, I was laid off two weeks ago.

This employer A (who filed for the H-1B) is going to revoke the H-1B petition on October 2nd. If another employer B files for an H-1B on my behalf on say October 15th (after A has already revoked the petition), will it still use the cap number from A, so that I do not have to be subject to the lottery again?
Submitted: 11 months ago.
Category: Immigration Law
Expert:  Judith replied 11 months ago.

Hello,my name is Judith. Thank you for this opportunity to answer your questions.

You could use the petition and not be subject to the cap but you could not get a new I-94 on the new petition approval notice. You would have to go home and do consular processing for an H1B visa stamp to be able to come back and work.

 

Judith

 

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24458
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and other Immigration Law Specialists are ready to help you
Customer: replied 11 months ago.

Hello Judith,


 


Thanks for answer. Just to make sure I understand this fully, if possible, it will be great if you could clarify what happens in the following two alternative scenarios:


 


Just to reiterate, I am on cap-gap and my H-1B status would have started on Oct 1st 2013, if not for the lay off.


 


 


1. If Employer A withdrew its approved petition on Sep 30th or earlier, and Employer B still filed the new petition before it was withdrawn, sometime in September, will the new petition be cap exempt?


 


2. If Employer A withdrew its approved petition on Sep 30th or earlier, and Employer B filed the new petition after it was withdrawn, on Oct 15th, will the new petition be cap exemp?

Expert:  Judith replied 11 months ago.

The law says if your petition has been counted towards the cap you shall not be counted again in the next 6 years.

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

 

If the petition is withdrawn before the start of the new fiscal year on Oct 1st that petition number then goes back in the pot and it is not yours. After October 1st it is yours because it has been counted.

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24458
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and other Immigration Law Specialists are ready to help you
Customer: replied 11 months ago.

Hello Judith,

 

I called up USCIS and from their response it appears that your answer about when the petition is counted against the cap is incorrect.

 

I asked USCIS this:

 

"I am on an OPT cap-gap with an approved H-1B petition with Employer ABC that becomes active on October 1st. However, I was laid off by Employer ABC and they are going to revoke my H-1B petition on September 15th. If I find another employer XYZ and they are only able to file for my H-1B petition on November 1st, will that new petition be cap-exempt?"

The USCIS official said that the new petition will remain cap-exempt.

Expert:  Judith replied 11 months ago.

Please give me the legal citation the non-lawyer gave you for that answer.

I have given you the law under AC21. I don't know of a single lawyer who would say if a petition is revoked before the start of the fiscal year that you get the benefit of that number.

Legal citation and name of person you spoke with, please.

 

Judith

Customer: replied 11 months ago.

The person did not provide a legal citation and neither did I record the name of the person. Although, I am not sure how the name would have helped, unless your point is to question whether I talked to a real person.


 


I appreciate that you have shared your legal opinion based on AC21 portability clauses.

I am talking with an immigration lawyer in person tomorrow for a second legal opinion, and will share any findings if they conflict with your understanding.

Expert:  Judith replied 11 months ago.

Do as you wish. Seeing a lawyer in person is most advisable because you have much at stake.

 

Judith

Customer: replied 11 months ago.

Judith,


 


The other lawyer confirmed what you said that if the petition is revoked before the start of the fiscal year on October 1st, the number may not be able to be retained.


 


If I am able to convince my employer (who laid me off) to not revoke my H-1B petition until October 15th, and then transfer to another visa (such as H4) from that date, will I able to retain my number and remain cap exempt?

Expert:  Judith replied 11 months ago.

Yes, that plan would work.

Judith

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