H4 to H1 (applying for cap exempt)

[mysticmauve]

I was working for company A in USA on H1B from Jan2011 and quit in Feb2013 (H1B Visa was valid from Jan2011 till May 2013).
Got my H4 which is valid till Oct2014. I came to India in Jun2013 and H4 is not stamped on my passport.

1) Can new employer in USA apply for H1B petition under cap exempt as I have already worked in USA on H1B from my old employer.

2)My old employer has got my H1b petition revoked. Will this cause any issue for new employer to file H1 under cap exempt?

3) Since I am not employed in India currently, will it cause any issue for new H1B petition?

4) Can the new employer file for H1B petition under cap exempt post May 2014 (i.e. more than 1 year from the date of H1B visa expiry or is there any mandate that it should be filed within 1 year from the H1B visa expiry date)?

5) If H1B petition is approved, when I go for H1 visa stamping - will it cause any issue as H4 is not stamped on my passport?

[raghvi]

I was working for company A in USA on H1B from Jan2011 and quit in Feb2013 (H1B Visa was valid from Jan2011 till May 2013).
Got my H4 which is valid till Oct2014. I came to India in Jun2013 and H4 is not stamped on my passport.

1) Can new employer in USA apply for H1B petition under cap exempt as I have already worked in USA on H1B from my old employer.

2)My old employer has got my H1b petition revoked. Will this cause any issue for new employer to file H1 under cap exempt?

3) Since I am not employed in India currently, will it cause any issue for new H1B petition?

4) Can the new employer file for H1B petition under cap exempt post May 2014 (i.e. more than 1 year from the date of H1B visa expiry or is there any mandate that it should be filed within 1 year from the H1B visa expiry date)?

5) If H1B petition is approved, when I go for H1 visa stamping - will it cause any issue as H4 is not stamped on my passport?

Assuming you filed H1 to H4 conversion before your last working day, and you got H4 approved with valid I-94 till Oct 2014.

1. Yes.
2. It doesnt matter even if they revoked. But you would need the receipt number/approval notice to prove that you are cap exempt.
3. No.
4. Yes, they can file cap exempt petition till 2019.
5. I dont think so.

This is my opinion not legal advice.

[mysticmauve]

Assuming you filed H1 to H4 conversion before your last working day, and you got H4 approved with valid I-94 till Oct 2014.

1. Yes.
2. It doesnt matter even if they revoked. But you would need the receipt number/approval notice to prove that you are cap exempt.
3. No.
4. Yes, they can file cap exempt petition till 2019.
5. I dont think so.

This is my opinion not legal advice.

Thanks a lot Raghvi for your response. I have few more questions on point (5)

6) Is it mandatory to get H4 stamped on my passport before getting H1 stamped? I do not see a point in going for H4 stamping as I am planning to enter US on H1B filed by new employer. Please let me know your inputs on this.

7) As I am outside India does my case fall under COS?

[kadkhiq81]

H4 to H1 (applying for cap exempt)

6. Not really. Try to find a new employer who can do H1 transfer and get it stamped and travel to the US however it's tricky option as you cannot find FTE from out of the country and also it will be normally difficult to get it stamped if it's through any consultancy.

My best suggestion would be, get your H4 stamped first, travel on H4 before it's expiry and find a right employer to do H1 transfer in COS.

This is my opinion.

[mysticmauve]

H4 to H1 (applying for cap exempt)

6. Not really. Try to find a new employer who can do H1 transfer and get it stamped and travel to the US however it's tricky option as you cannot find FTE from out of the country and also it will be normally difficult to get it stamped if it's through any consultancy.

My best suggestion would be, get your H4 stamped first, travel on H4 before it's expiry and find a right employer to do H1 transfer in COS.

This is my opinion.

Thanks for the response.

[zzrohit]

May I know how is 2019 being cap exemption year as original H1 started in 2011?

[raghvi]

May I know how is 2019 being cap exemption year as original H1 started in 2011?

Last held valid H1 status was in 2013. 6 years from there on.

This is my opinion not legal advice.

[Meenu Agarwal]

Hi, I have used my H1b for 3 yrs from 2012 to 2015. And then I was I in india until April 2019. Now I came to US on H4 and trying to get my h1 reinitiated as it is still valid for 3 yrs I need cap exempt from new employer as I am not with my original employer who filed h1 b in the beginning. Do i
need to travel to india for stamping Incase I find an employer who is doing my H1 transfer or I will do COS from H4 to H1.

pls help!!
Thanks!!