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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 109612
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I had an unused h1b petition that was approved in October

Customer Question

I had an unused h1b petition that was approved in October 2011 n expired in October 2012. Can I file the h1 under cap exempt quota now
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Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

This happens more often than you think. You mean to say that you never went to work for the H-1B petitioning employer? And you never got an H-1B visa stamp? Is the employer that wants to file for you now the same H-1B employer as before?

Customer: replied 1 year ago.
No he is not the same employer, I am just trying to ise the same petition and file for a change of employer
Customer: replied 1 year ago.
I am still cap exempt correct because I am within the six year period ?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Unfortunately, no. If you did not go to work for the original H-1B petitioner and you did not go get H-1B visa stamping, then you were never technically counted against the cap. I had this discussion with a colleague of mine that has over 30 years of experience in this field and we determined that USCIS would deny such a petition unless it was filed by the same employer that petitioned for you originally. So it might work if your originally employer filed for you again, not if a new employer filed for you since you never actually activated the H-1B and thus were counted against the cap. If you did work for the original H-1B employer OR you went and got H-1B visa stamping but just never used it, then yes, a new employer could file a new cap-exempt H-1B for you.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see any stars or smiley faces, please at least leave a THANK YOU for me so I can let the administrators know. Your question thread does NOT close, so you can ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Customer: replied 1 year ago.
No your answer did not help at all. I just consulted with one of my friends and his case was exactly same as mine. He got his approval very recently. You are wrong.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Ok. My 13+ years of experience and my friend's 33+ years of experience are wrong. Go ahead and try it. If it turns out I was wrong and you do get approved doing it the way that you outlined, please come back and tell me and that way I will let others know. I can accept that I am wrong, even though there is no specific law that outlines it and my research and discussion say otherwise. However, if I turn out to be right, then again, please come back here and tell me so that I can use this as an example. Thank you for your understanding.