H1B withdrawn before effective data, Cap Exempt or Not

[himansu.pathak]

Hi,

I am currently working with company B on L1B and in USA.

In Apr 2010 , H1B was filed by Company A when I was in India then I left this job in Jun 2010, they filed withdrawal and withdrawal notice was recieved in Aug 2010.

Withdrawal notice states that petition was in Decision status before being withdrawn and a new application should be filed with all applicable fee and evidences if wants to take benefit of this application in future.

My question is that

1. How do I check whether H1b was approved or not? Quota this year was open till Jan 2011 so high chances are that it was reviewed by USCIS.

2. How do I get approval notice I797 etc as I am not employee of Company A anymore.

3. Can an employer C file cap exempted H1B based on this petition as its well within 6 years.

4. If Employer C can file H1B can I start working on H1 before Oct 2016?

5. DO I need to travel back to India to get H1b Stamped and come back on H1B or L1B to H1B can be done without traveling outside from (My current L1B (employer B) to H1B ( employer C)

[shervin143]

1. How do I check whether H1b was approved or not? Quota this year was open till Jan 2011 so high chances are that it was reviewed by USCIS.
>>> It doesn't matter. Even if the petition was approved, if it was revoked before Oct 1st, then you no longer hold that CAP.

2. How do I get approval notice I797 etc as I am not employee of Company A anymore.
>>> You cannot. Approval notice is employer's since the petition is theirs. Getting it from your employer is the only option.

3. Can an employer C file cap exempted H1B based on this petition as its well within 6 years.
>>> Possible if you have a copy of that approval notice and if the that petition was not revoked by your previous employer before Oct 1st.

4. If Employer C can file H1B can I start working on H1 before Oct 2016?
>>> If the above statement 3 is true, then it is possible.

5. DO I need to travel back to India to get H1b Stamped and come back on H1B or L1B to H1B can be done without traveling outside from (My current L1B (employer B) to H1B ( employer C)
>>> L1 to H1B COS can be filed.

[himansu.pathak]

Thanks for ur reply...

Please note it was not revoked but withdrawn... I believe withdrawal is different than revoke. Withdrawal is mandatory if employer will no longer handle payrol on H1b for beneficiary employee.

- - - Updated - - -

Thanks for ur reply shrevin143

Please note it was not revoked but withdrawn... I believe withdrawal is different than revoke. Withdrawal is mandatory if employer will no longer handle payrol on H1b for beneficiary employee.

So its not revoked ,it can be utilized , right?

1. How do I check whether H1b was approved or not? Quota this year was open till Jan 2011 so high chances are that it was reviewed by USCIS.
>>> It doesn't matter. Even if the petition was approved, if it was revoked before Oct 1st, then you no longer hold that CAP.

2. How do I get approval notice I797 etc as I am not employee of Company A anymore.
>>> You cannot. Approval notice is employer's since the petition is theirs. Getting it from your employer is the only option.

3. Can an employer C file cap exempted H1B based on this petition as its well within 6 years.
>>> Possible if you have a copy of that approval notice and if the that petition was not revoked by your previous employer before Oct 1st.

4. If Employer C can file H1B can I start working on H1 before Oct 2016?
>>> If the above statement 3 is true, then it is possible.

5. DO I need to travel back to India to get H1b Stamped and come back on H1B or L1B to H1B can be done without traveling outside from (My current L1B (employer B) to H1B ( employer C)
>>> L1 to H1B COS can be filed.

[shervin143]

Well, at least in the case of revoke, then petition should have been approved first to file a revoke. In case of withdrawal, the petition never got approved at the first place to secure a CAP. If an approved petition is revoked before Oct 1st or withdrawn before getting a decision or denied by USCIS, you do not get a CAP. In such case, your only option is to try again under a brand new quote on the following year.

Thanks for ur reply...

Please note it was not revoked but withdrawn... I believe withdrawal is different than revoke. Withdrawal is mandatory if employer will no longer handle payrol on H1b for beneficiary employee.

- - - Updated - - -

Thanks for ur reply shrevin143

Please note it was not revoked but withdrawn... I believe withdrawal is different than revoke. Withdrawal is mandatory if employer will no longer handle payrol on H1b for beneficiary employee.

So its not revoked ,it can be utilized , right?

[himansu.pathak]

Lets look at dates:
1. 06-apr -2010 , petition was filed
2. 13- aug 2010 , it was withdrawn, below is the details on withdrawal notice which says it was in decision status when withdrawn,

what do you think it was approved or not?


*** DO NOT RESPOND TO THIS E-MAIL ***

The last processing action taken on your case

Receipt Number: YYYY YYYY XX

Application Type: I129 , PETITION FOR A NONIMMIGRANT WORKER

Your Case Status: Decision

On August 13, 2010, we mailed a notice acknowledging withdrawal of this application or petition I129 PETITION FOR A NONIMMIGRANT WORKER. If you have not received the notice within 30 days of August 13, 2010, contact our customer service at 1-800-375-5283. If at some point in the future you wish to pursue the benefits provided by this application or petition, you must file a new application along with all applicable fees and evidence.


During this step the formal decision (approved/denied) is written and the decision notice is mailed and/or emailed to the applicant/petitioner. You can use our current processing time to gauge when you can expect to receive a final decision.


If you have questions or concerns about your application or the case status results
listed above, or if you have not received a decision from USCIS within the current
processing time listed*, please contact USCIS Customer Service at (800) 375-5283.

[shervin143]

Why will USCIS approve a petition that was withdrawn? The case status clearly states that the petition was withdrawn by the employer. USCIS would have taken no action on that petition after acknowledging the withdrawal.

Lets look at dates:
1. 06-apr -2010 , petition was filed
2. 13- aug 2010 , it was withdrawn, below is the details on withdrawal notice which says it was in decision status when withdrawn,

what do you think it was approved or not?


*** DO NOT RESPOND TO THIS E-MAIL ***

The last processing action taken on your case

Receipt Number: YYYY YYYY XX

Application Type: I129 , PETITION FOR A NONIMMIGRANT WORKER

Your Case Status: Decision

On August 13, 2010, we mailed a notice acknowledging withdrawal of this application or petition I129 PETITION FOR A NONIMMIGRANT WORKER. If you have not received the notice within 30 days of August 13, 2010, contact our customer service at 1-800-375-5283. If at some point in the future you wish to pursue the benefits provided by this application or petition, you must file a new application along with all applicable fees and evidence.


During this step the formal decision (approved/denied) is written and the decision notice is mailed and/or emailed to the applicant/petitioner. You can use our current processing time to gauge when you can expect to receive a final decision.


If you have questions or concerns about your application or the case status results
listed above, or if you have not received a decision from USCIS within the current
processing time listed*, please contact USCIS Customer Service at (800) 375-5283.

[himansu.pathak]

What if it was approved first and then withdrawn...

[kabkaba]

'Withdrawal' is what the petitioner (employer) does and 'revocation' is what USCIS does. Just different words, they make no difference to you. Before or after approval also does not make any difference to you. According to recent USCIS policy, unless you have actually worked in H1B status, you will not be cap-exempt.