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H1 Validity

Discussion in 'Nonimmigrant Visa Validity' started by vikky, Dec 10, 2015.

  1. vikky

    vikky New Member

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    Need urgent help:

    I had h1 from 11/2013 to 9/2016. Never attended visa stamping.
    1. Can I now transfer my h1 to a new employer? And attend for visa?
    2. Will it be counted as exempt?
    3. If USCIS determines it is subject to Cap, will they refund the fee?
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes it is cap exempt and no they won't return a fee if someone files in the wrong category.
     
  3. vikky

    vikky New Member

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    Awesome thank you very much for quick reply
     
  4. Legal Immigrant

    Legal Immigrant Banned

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    @Ron Gotcher : If it was never stamped, it means visa was never issued. It doesn't make it cap-exempt.
     
  5. DonDraper

    DonDraper Guru

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    Stamping has nothing to do with it.
     
  6. Legal Immigrant

    Legal Immigrant Banned

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    Are you sure? Stamping means "Issuance of visa". OP was never issued a visa.
     
  7. Legal Immigrant

    Legal Immigrant Banned

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    INA § 214(g)(3) says a petition is only counted in cap after issuance of visa, otherwise the number is restored:

    Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status. If an alien who was issued a visa or otherwise provided nonimmigrant status and counted against the numerical limitations of paragraph (1) is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status is revoked, then one number shall be restored to the total number of aliens who may be issued visas or otherwise provided such status under the numerical limitations of paragraph (1) in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the petition was approved.

     
  8. Legal Immigrant

    Legal Immigrant Banned

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    So, technically, OP was never counted in cap since he was never issued a visa. Mere approval of petition doesn't mean it is counted.
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Unless he was otherwise provided such status.
     
  10. GreenHope

    GreenHope Senior Member

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    what is counted is the visa status ... not the visa stamp. Clearly, he has visa status and was counted.
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    A visa petition, followed by a change of status to H1 or the issuance of an H1 visa.
     

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