L2 to H1b denied. Can we apply for new H1b immediately?

Question

I am on L1 Visa and my wife is on L2 visa. She has EAD and is working. Her employer (A) applied for H1b in June 2012. H1b was denied after an RFE for employee-employer relation.

1) Can her current employer (A) apply for a new H1b with different client immediately? Will this be cap exempt?

2) Can some other employer (B) apply for a new H1b with a different client immediately? Will this be cap exempt?

3) Is MTR for denied visa necessary in any of the above cases?

My understanding is MTR is necessary to be in valid status to apply for new H1B. But in this case my wife is on L2-EAD and is in valid status.
Any help in this regards is highly appreciated.

Answer 1

1) and 2)    H1B is cap-exempt only if she had been on an approved H1 before. If this is teh first time she is apllying for H1 and if rejected, she can contest it or apply in next years quota. One option is to continue working in EAD (if its valid) till next April and apply again.

However she can look for opportunities in certain insitutions like Universities, NGO's who are cap exempt and can apply for H1B all through the year, which will be the other option if she need H1 immediately.

3) Is MTR for denied visa necessary in any of the above cases?

MTR is not necessary as far as I know if you have your L2 still valid to be in status. You can continue in your previous status i.e. L2. If your previous status is expiring you need to do apply for extension or MTR to maintain your status.

 

It is always advisable to consult your immigration lawyer to be on the safe side.

Comments

Thanks for the reply Ramanan.

This was the first time we applied for her H1b, so looks like she is not "cap exempt".

My wife's L2 is valid till Nov 2013, so we have an option of applying again in April 2013. Hopefully we will get it approved then.

Thanks again .. !