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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.
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A withdrew its approved petition on Sep 30th or earlier, and Employer B still filed the new petition before it was withdrawn, sometime in September, will the new petition be cap exempt?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If Employer A withdrew its approved petition on Sep 30th or earlier, and Employer B filed the new petition after it was withdrawn, on Oct 15th, will the new petition be cap exemp?
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If the petition is withdrawn before the start of the new fiscal year on Oct 1st that petition number then goes back in the pot and it is not yours.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.
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.
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.
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.
Do as you wish. Seeing a lawyer in person is most advisable because you have much at stake.
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?
Yes, that plan would work.
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