2008 H1 approved but not stamped

[ashontop]

I got my H1 approval in 2008 and didnt went to stamp the H1 ever.
My petition was not COS...
Now I want to go back to H1..
Can anybody tell me if that H1 will be still valid or I will have to do brand new H1?

Thanks for your help...

[shervin143]

Are you current inside U.S? If yes, what is your current immigration status? Are you planning to work for the same employer who filed your H1B petition in 2008?

[surendra334]

Hi Shervin,

I am in the same situation.
I had my H1B petition (filed by Company A) approved in 2008 but never went for stamping. I was in India at that time.

Now, I am in US on L1-B (thru company B) from May' 2011.
The questions I have are
1. Can I use the same H1-B petition which was approved in 2008?
2. If so, does it need to be that I have to work for company A?
3. Can that H1-B petition be helpful even if I plan to work for different employer (Company C)?


Your response would be very helpful in making my decision.

Thanks for your help.

[kabkaba]

Any employer can file a cap-exempt petition with immediate start date for you at any time. You can start working for this H1 employer only after petition is approved with change of status and once change of status is approved, you must work for this H1 employer. The H1 employer will need a copy of the previous H1's receipt or approval notice or at the very least the receipt number. You will only get 6 years less any period of time spent in the US in H1 or L1 status.

[surendra334]

Any employer can file a cap-exempt petition with immediate start date for you at any time. You can start working for this H1 employer only after petition is approved with change of status and once change of status is approved, you must work for this H1 employer. The H1 employer will need a copy of the previous H1's receipt or approval notice or at the very least the receipt number. You will only get 6 years less any period of time spent in the US in H1 or L1 status.

Thanks kabkaba for the information. I have some questions on top of your response.

I understand that ANY employer (say, X and he can be different from the employer who filed my petition in 2008) can file a cap-exempt petition. Is my understanding correct? Should this petition be with COS or not required?

My Petition filed in 2008 didn't had any dependents mentioned (I was unmarried then). But now, my spouse and kid are with me in US on L2. So, should my cap-exempt petition should be filed along with this information so as to have them convert from L2 to H4?

Will there be a time gap between petition getting approved and COS getting approved? If so, I can still work for my current employer till the time COS is not approved?

My L1 visa is getting expired in Sep'2012 and I-94 in May'2013. This means I should have my petition with COS approved before Visa expiry or I94 expiry?

>>You will only get 6 years less any period of time spent in the US in H1 or L1 status.
Period of time spent in US is calculated from 2008 petition approved date?

[kabkaba]

Thanks kabkaba for the information. I have some questions on top of your response.

I understand that ANY employer (say, X and he can be different from the employer who filed my petition in 2008) can file a cap-exempt petition. Is my understanding correct? Should this petition be with COS or not required?

Yes, that is correct. COS is a separate matter, not related to cap-exemption.

My Petition filed in 2008 didn't had any dependents mentioned (I was unmarried then). But now, my spouse and kid are with me in US on L2. So, should my cap-exempt petition should be filed along with this information so as to have them convert from L2 to H4?

Yes, I-539 will need to be filed for them to change their status to H4, if your status is also changed to H1.

Will there be a time gap between petition getting approved and COS getting approved? If so, I can still work for my current employer till the time COS is not approved?

Generally there is no gap, unless the H1 employer specifically requests a future date (up to 6 months in the future). You must work for L1 employer until COS is approved and must switch to H1 employer after COS is approved.

My L1 visa is getting expired in Sep'2012 and I-94 in May'2013. This means I should have my petition with COS approved before Visa expiry or I94 expiry?

Visa expiry does not matter. I-94 matters.

>>You will only get 6 years less any period of time spent in the US in H1 or L1 status.
Period of time spent in US is calculated from 2008 petition approved date?
All the time spent in the US in past in H1 or L1 status.

See above.

[surendra334]

Thank you very much for the response, kabkaba.

I have one fundamental question.

My H1 Petition filed on 2008 had an expiry date of Sep 2011.
Having said that, any employer can still file a cap-exempt petition for me, right?

Thank you in advance.

[shervin143]

That is correct.

My H1 Petition filed on 2008 had an expiry date of Sep 2011.
Having said that, any employer can still file a cap-exempt petition for me, right?