H4 to H1 COS

[sweaty100]

My employer filed my h1b petition and it was approved till oct 30th 2012.
However when i went for stamping (first time h1b stamping) my visa was rejected. Now i am getting married in june to an h1 b holder and will try to go to US with my husband on H4 visa. If I plan for a COS from h4 to h1 b, will my h1 b application be cap counted. I mean will some employer have to file a new H1 b for me which will come under the 2013 quota and i can start working only after October 2012 or some employer can apply for a new h1 using my previous approval which was rejected.. please clarify. I would really appreciate if someone can answer this question.

[akhil_agarwal1]

A employer can apply for a COS from H4 to H1 (using your previous approved petition).

[shervin143]

My employer filed my h1b petition and it was approved till oct 30th 2012.
However when i went for stamping (first time h1b stamping) my visa was rejected. Now i am getting married in june to an h1 b holder and will try to go to US with my husband on H4 visa. If I plan for a COS from h4 to h1 b, will my h1 b application be cap counted.
>>> No. You are already CAP counted. You can use the CAP from your previous H1B approval notice.

I mean will some employer have to file a new H1 b for me which will come under the 2013 quota and i can start working only after October 2012
>>> Not required. The employer can request an immediate start date.

or some employer can apply for a new h1 using my previous approval which was rejected..
>>> Possible. Read answer 1.

[sweaty100]

Thanks a lot Akhil and Shervin. You are really a big help for people like me . Thanks a lot!!

[sweaty100]

Please let me know if a person never came to US and has full 6 years ahead of him, is he still cap Exempt. I am confused because of the following (underlined statement)

Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed


Please advice.

[shervin143]

If the petition was filed within the last 6 years, then the CAP from that petition can be used to file a new petition with an immediate start date.

Please let me know if a person never came to US and has full 6 years ahead of him, is he still cap Exempt. I am confused because of the following (underlined statement)

Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed


Please advice.

[sweaty100]

Hi Shervin
My friend went for her h1b stamping in hyderabad in november 2011 .Her H1 B is in processing since last 6 mths and now she got to know that the employer does not have a good record and she might have lots of problems even if H1 get approved..
If she withdraws her petition now and comes to US on h4 Visa, will she still be cap exempt or she will come under cap as she withdrew her h1b petition?
Please reply. Thanks

[shervin143]

She will be cap exempt.

Hi Shervin
My friend went for her h1b stamping in hyderabad in november 2011 .Her H1 B is in processing since last 6 mths and now she got to know that the employer does not have a good record and she might have lots of problems even if H1 get approved..
If she withdraws her petition now and comes to US on h4 Visa, will she still be cap exempt or she will come under cap as she withdrew her h1b petition?
Please reply. Thanks