H1B visa 2012 Lottery new rule

News: H1B Visa 2012 – Visa Lottery electronically before filing petition ?

In H1B Visa News by KumarUpdated : 140 Comments

Looking for H1B Visa 2012 Cap Count updates ? Click here – H1B 2012

Imagine an employer’s frustration , who might have spent around $1000 just on legal costs and gets a ‘No’ from USCIS that your petition was not picked up in lottery after prolonged anxiety ?  Well, USCIS/ DHS have proposed a rule to avoid such frustrations and significant costs for employers including streamlining the process at USCIS by eliminating unnecessary administrative expenses and time.

Summary of the proposed rule for H1B visa FY 2012 filing ?

The gist of the rule is that employers, who intend to hire skilled labor on H1B visa, should register with USCIS electronically via Internet the beneficiary( the person to be hired) info before physically filing the petition. In case, there is a flood of applications like in years 2007 and 2008 where there was lottery, USCIS will do random process electronically and inform the employer if their visa petition info was picked in random selection or lottery.  To avoid duplications by same employer, the system will reject applications filed with same info of beneficiary. Pretty logical right ?

What’s the current status of this new H1B filing rule for fiscal year 2012 ?

This is still in proposed status with official status of “Notice of Public rule Making (NPRM)”, which starts from Jan 1, 2011 and goes until March 1, 2011. The agency will receive comments from public during the 60 day window and make changes to rule as needed.
What are your thoughts on the proposed rule ?

Stay tuned by subscribing via below email to blog for more updates on H1B.

References:
Official Rule on US Gov website with full details on the proposed rule

Other Articles


Comments ( 140 )

  1. NJ

    Hi,

    Has anybody got his/her Sikkim Manipal University, Distance Education degree evaluated after 2011. Can you please share the outcome of your evaluation.

    1. sam

      Hi

      I have also done MBA from Sikkim manipal university. Can anyone share outcome of education evaluateon for H1b and agency name.

      Regards
      Sam

      1. NJ

        For those who are in dilemma about the sikkim manipal university degree being accepted for FSW (Canada) program or not. Then kindly contact ICAS as someone got this reply for his query :-

        We will review a distance education qualification awarded by Sikkim Manipal University, provided that the following requirements are met:

        – SMU must have been UGC-recognized at the time of your admission

        – The program must have been DEC-recognized at the time of your admission

        Please contact us if you require additional information or clarification.

        ICAS of Canada

        Take care..

  2. Gyan

    My friend has done b.com(computers) from india and after that he did 2 yr mba in hr from Symbiosis(distance learning) , will he qualify for H1b visa? He has work experience of 4 yrs in school administration.

  3. Nayaz

    Hi Saurabh,

    I have a question regarding H1b.

    I was on H1 for 2 years, then switched to L1. Now I am having plans of changing my employer and so my status would change from L1 to H1.

    Now I have 2 question,

    First, I would be continuing in my old H1b as I still have my 3 years left in my old H1b, right ?

    Second, Can I get my L1 to H1 transfer done even after the count 65,000 ?

    Thanks.

    1. administrator
      Saurabh

      Nayaz,
      An employer (old or new) can file cap-exempt petition for you along w/ COS. Once it gets approved you can start working for the new employer. You are not subject to quota.

      1. Nayaz

        Saurabh,

        Also I have another question here, I can use my old H1b only if it is within 6 years of the visa initiation date or from the day I entered US on H1 ?

        For instance, my visa was initiated in Oct 2006 but was on hold till Oct 2008 and then I came to US in 2008.
        So, I can get my L1 to H1 anytime before Oct 2014, which is 6 years from the time I got my visa, or I need to get it done before Oct 2012, which is 6 years from the time I got my visa INITIATED, in order to use my old H1 ?

        Thanks,

        1. administrator
          Saurabh

          Nayaz,
          This is a gray area. Usually they say 6 years from the approval date, but I don’t think they are very strict about it. I think you can still use it within 6 years from 2008. You can check w/ your attorney as well.

  4. Deepika

    Hi Saurabh,

    I am on H4 and want to apply for H1, When I spoke to my employer he says he cannot get me a project until October 2012, as H4 cannot join work until October 1, 2012. I wanted to clarify on the same ?

    Also, If the above is true and I wait till Sept-Oct, then what if the H1b quota reaches 65,000 ? Should I again have to wait for another year. Is there anyway I can get my H1b done now ? Thanks.

    1. administrator
      Saurabh

      Deepika,
      What he meant was that even if you get the H-1, you cannot start to work until Oct 1. The earliest start date for H-1 employment is Oct 1. If the quota gets over, then you will have to wait for another year.

      You can search for another employer who is willing to file now and wait until Oct for you to start employment (pending H-1 approval w/ COS).

      1. srk jos

        Ok So Sourabh . My h1 app is filed on nov 17 2011, so from your above comment , no matter when my h1 will be approved, i can not start working until 1st oct 2012 ?

        Also you earlier mentioned that quota for fy12 i.e. 2011 yr is already over in nov 2011 ; and I am still waiting for any response from USCIS, so is there any chance for me to get rejection with reason tat quota is over ?

        1. administrator
          Saurabh

          srk jos,
          That response was for Deepika whose petition would be filed b/w April and October.

          Let me put it this way, the earliest start date to work for FY-XXXX is October (XXXX-1). So in Deepika’s case, her petition is filed in FY-2013 and so start date to work is Oct 2012. In your case, petition was filed in FY-2012 and so start date to work is Oct 2011. Does that clarify?

          Although the quota for FY-12 is over, yet there are petitions pending which are considered to have made through the cap. USCIS will still process them.

  5. Ram

    Hi Saurabh,

    I am currently on L1B, and expected to stay here till July 2012. I have also filed for H1B through another employer last week. If I resign from my current company at the end of july just before leaving for India and hopefully if I also get H1B petition by then on what status till Oct’12 I can stay in US.

    Thanks
    Ram

    1. administrator
      Saurabh

      Ram,
      If you resign from L-1 employer, then you cannot stay in US. Your H-1 won’t start until Oct 1, and you won’t be in a legal status b/w July and Oct. So you would have to leave US. You can decide to file COS to B-1, but it may or may not get approved and can make things complicated.

  6. Sunny

    Dear Saurabh,
    thanks for your replies….

    On May 14th checked my status in the USCIS website. it was showing your petition approved. and status was “decision”
    on 15th I got email from employer. they said that” your petition has been approved”
    but since 17th it showing status: acceptance.
    I am confusing could you please clarify my doubt.

    regards
    sunny

    1. administrator
      Saurabh

      Sunny,
      It could either be a technical error or USCIS may have intentionally put the petition back in Acceptance status if they would have discovered something after the approval. It would be better for the employer to call USCIS and get it clarified.

  7. sunny

    Hi Saurabh,

    What is the procedure for first time stamping. My petition approved for three years.
    when will I attend for stamping is there any time frame for first time stamping???
    please help me on this.

    regards
    sunny

    1. administrator
      Saurabh

      Sunny,
      You can go for stamping as early as 90 days prior to H-1 start date. You can go anytime while the petition remains valid.

  8. Aehrar

    Hi Saurabh,

    I have another doubt.
    Suppose I have 3 years of Bachelor’s degree and 1 year of PG diploma degree, can I then combine the two educational degrees to make it 4 years of education ?
    Or does it have to be like ‘one’ 4 year degree ? Thank you.

    1. administrator
      Saurabh

      Aerhrar,
      It’s not a simple math. The agency will look at the courses to determine whether together they qualify as 4 years US Bachelors or not.

  9. Aehrar

    Hi Saurabh,

    I am on L2 and want to apply for H1B Visa. I wanted to know, does graduation done in distance learning mode from a recognized Indian University qualify for H1b ?

    Thank you.

    1. administrator
      Saurabh

      Aehrar,
      You need to get your degrees and marksheets evaluated by an education equivalency agency in US. Once they confirm that you have education at par w/ at least 4 years of US Bachelors, you should be fine. Else, you need to have at least 3 years of relevant work experience for each missing year of education.

      1. Aehrar

        Thank you Saurabh.

        But what I exactly want to know is would evaluation agency consider ‘distance education certificate’ for evaluation ? I mean to ask is, would distance learning certificate be considered equivalent to regular certificate ? Or is it better for me to opt for regular over distance education ?

        1. administrator
          Saurabh

          Aehrar,
          I haven’t seen anything which says distance learning is not allowed. It comes down more to courses, degrees etc.

  10. Jairam

    Hi guys

    Any idea if children born here can be a part of an ad campaign ( like a TV ad ) though their parents are still on H1B visa ?

    Just curious.

    Thanks

  11. sunny

    hi Saurabh,

    My qualification is Master of Science (computers)
    1. M.Sc (computers)
    2. PGDCA (1 year from private institution)
    3. B.Sc ( computers)

    total : 10+2+3+1+2 = 18 years education
    and i have 4 years of exp.

    Am I eligible for H1B visa??? please let me know.

    thanks
    sunny

    1. administrator
      Saurabh

      Sunny,
      You look like you are eligible. However, you should still submit all your degrees to education equivalency agency in US to know what’s the US equivalent of your education. If it is more than 4 years of US Bachelors, then it is fine.

  12. Karthik

    Hi Saurabh,

    My H1B application had been filed by my employer on Aug 2011. But I haven’t got the status yet either as rejected or accepted. When I asked my employer , they said that its in pending status(under review). As h1b 2013 process has been started, will I still get my status ? what is the last day for getting status back ? Will there be a chance to get rejected now? Or Will it not processed as H1b 2013 process started?

    1. administrator
      Saurabh

      Karthik,
      Do you know for sure if your petition has been filed? It should have been processed several months ago. Do you have the receipt number?

      1. Karthik

        Saurabh,

        I don’t have the receipt number as my employer denied to share. But it is sure that h1b has been filed for me. When I queried the status with attorney, they replied like
        “The case is still in process with USCIS since Aug 2011 when we filed with USCIS.
        There are many cases still under review since Aug, Sept, Oct.
        We will just have to wait.”—
        Is it possible to get the status after this long period?
        As H1b 2013 cap started, will my application be processed now?
        what is the last date to get the status?
        how to ask my employer to get the exact status with uscis?

        Sorry for the many questions. but i am totally confused and seeking your help . What should i do now?

        1. administrator
          Saurabh

          Karthik,
          There are always few outlier cases here and there, which do not get processed for months. Your’s may be one of those, not sure. Technically, they should process FY-12 petitions before starting FY-13 petitions, so yes it should really get processed now. There is no last date to get status (well, last date would be I-129 end date).

          You can look at processing times on USCIS website and show the same to your attorney. And then ask them if they can at least get an ETA on this from USCIS. In the end, it’s up to them whether to follow-up w/ USCIS or not.

  13. Ram

    Hi Saurab,

    I am working on L1 B , Currently I am plannig to chnage the status from L1 B to H1B through my emplyer in Apr’2012. Could you please reply to my questions.

    1. How much time it will take to convert the status from L1B to H1B ?
    2. If my Status has changed from L1 to H1, when I will be eligible to start working on H1 ..?
    3. If i got the H1B also, can i still be eligible to work on L1 or it wil get cancelled.

    PLease let me know

    Thanks
    Ram
    2.

    1. administrator
      Saurabh

      Ram,
      1. COS (change of status from L-1 to H-1) would be filed along w/ initial H-1 petition. Under regular process, it would take 2-6 months, while under premium processing it will take 15 calendar days (not including RFE time). In either case, it cannot become effective prior to Oct 1.
      2. Oct 1 if approved prior to that date. Else actual approval date
      3. You can no longer work on L-1 after COS approval date as your status would change to H-1. To continue working on L-1, you should not file COS

      1. Ram

        Hi Saurabh,

        1.Before filing COS, Can I go on L1 Visa to India and come back or do i need to go for H1 stamping in India.
        2. Do we need to file COS before Oct ? Do we have any time constraints for cos.

        Thanks
        Ram.

        1. administrator
          Saurabh

          Ram,
          1. COS needs to be filed w/ the petition. Do you mean to say file H-1 petition after returning from India? If yes, then you can do that – return from India on L-1 and then have employer file H-1 w/ COS.
          2. COS needs to be filed w/ initial H-1 petition. Once the petition has been approved, it can still be filed against the approved petition, but you will have to check w/ your employer on this.

  14. Vasu

    Hii

    If i stay with same employer and due to personal reasons i change the job location (move to another state) do i have to go through h1b transfer again or mere h1b amendment is enough or again i have go through entire h1b transfer? Please advise!!

  15. prashanthi

    Hi,

    My husband currently holds a H1B visa and I hold H4.
    We are yet to decide on when to go to the US based on the project he gets from his current company.
    I need some clarifications:
    1.How can I change my h4 to h1,is there a time limit in which I have to stay as a H4 dependent in the US before I file for h1.
    2.If iam in the US,and want to file for H1,should that be from an employer?
    But if that is the case,how do i apply for jobs on my H4,for an employer to sponser my H1.
    3.Can I apply for H1 being in India itself?

    Thanks in advance!

    1. administrator
      Saurabh

      Prashanthi,
      1. You will have to find an employer willing to sponsor H-1 for you. They can file it while quota is open and w/ COS. Once COS is approved, your visa status would be H-1 and you should start working on H-1. There is no limit on how long you should have stayed on H-4, but it is recommended to wait for at least 30-60 days before filing H-1 COS.
      2. It is always through an employer. You can search for employers who are ready to extend sponsorship.
      3. Yes, that is also an option.

      1. prashanthi

        Hi Saurabh,

        Thanks so much for the reply.
        I have this last query can I work from home from USA for any Indian Company on Indian salary on H4 Visa is it legal?

  16. Shweta

    Hi Saurabh & Naman,

    I am on H4 and have 3 years bachelors degree from India… to make myself eligible for H1 i have enrolled for a MBA from distance learning school in India… Will i be eligible after i complete my MBA (12+3+2yrs MBA distance mode). Please help me to understand this…. Thanks in advance for your help… please advise…

    1. administrator
      Saurabh

      Shweta,
      It is not that simple calculation. You should get your degrees evaluated by an education evaluation agency. They can let you know that your total education is equivalent to 4 years US Bachelors and then you would be eligible.

      1. Shweta

        Hi Saurabh,

        Thanks for your reply.
        I am doing my MBA in distance learning mode from Sikkim Manipal University of Distance Education. If it is equivalent to 4 year degree in the United States, would it matter to the USCIS if it is done in distance learning mode?

        1. administrator
          Saurabh

          Shweta,
          The education equivalency evaluation agency will have factored that in when issuing the certificate. So once you have the certificate from the agency, it should be fine even w/ USCIS. I have seen couple of cases where USCIS questioned the findings of the agency, and then you will have to get that certificate from multiple agencies to show the proof.

          1. Shweta

            Hi Saurabh,

            I want to know what are the specific accreditation that a university in India should have to be recognised by WES or any other evaluation agencies? Please help as I want to choose the correct university rather than wasting my time and money…

            Thanks a lot saurabh for the help….

          2. NJ

            Hi Shweta,

            What was the outcome of your SMU degree’s evaluation. Kindly share it with us all. Also please share which evaluation agency did you pursued with ?

            Thanks,
            NJ

  17. Nithya

    Hi Saurabh,

    I am currently on my OPT( the initial 12-month period ends on Aug 28th 2012) and I have found an employer who is willing to sponsor my H1-B visa.However, the employer is not e-verified so there is no possibility for STEM extension with them even though I am eligible for STEM. So the employer wants to file for my H1-B as soon as the quota opens in April 2012 so that I can get my H1B soon.

    I understand that as long as my h1b is applied, I am eligible to work even beyond 28th August (my OPT end date). But my big concern is, if by chance my H1b gets rejected , I would want to know it before Aug 28 2012 so that I ll have time to apply for STEM extension and try to get a job with some other e-verified employer. However, if i get the h1b reject AFTER Aug 28th 2012, I cannot apply for STEM extension and I will have to leave the country.

    I would like to know what you would suggest, in my case.
    -Should I just apply in April 2012 under REGULAR processing under the hope that if I do get a H1B reject, it will come before Aug 28th 2012, thereby giving me time for STEM application?
    If my H1B is applied in the first week of April, is there a possibility that I might not get a reply from USCIS by August 28th 2012?

    OR

    -Should I apply in April 2012 under PREMIUM processing , to be on the safer sider, so that if i do get a h1b reject, it ll happen very soon so that I can apply for STEM extension well in advance?

    I know this is a worst- case scenario but I would like to be prepared in advance.
    I would really appreciate your opinion on what my course of action should be.

    Great job with the site!

    Thanks

    1. administrator
      Saurabh

      Nithya,
      Those concerns are pretty valid and the best way is to file H-1 w/ PP. This way you would know about the result early and can plan further course of action in case it gets denied.

      1. Nithya

        Hi Saurabh,

        Thanks a lot for your reply. I have another question regarding the H1B and OPT stem extension.

        To be on the safer side, can I apply for OPT Stem extension while my H1-B application has been put in and when I haven’t received a response for my H1B yet? i.e., Can there be an OPT Stem extension application and H1B application filed for the same candidate with USCIS at the same period of time?

        Thank you for your time.

        1. administrator
          Saurabh

          Nithya,
          Yes, that can be done. However, OPT extension is normally filed 3 months prior to OPT expiration date. If you are filing H-1 w/ PP, you may know pretty early whether H-1 has got approved or run into RFE. That can provide you a hint whether to file for OPT extension or not.

          1. Nithya

            Thanks for your reply, Saurabh. I spoke to my H1-B lawyer and he told me that they are doing regular processing only and not the premium, hence the question.
            So if I do not get a response regarding my H1B before the end of my OPT, i can still apply for the STEM extension too even though my H1B application is still in progress.

            I have another question which is :
            In case I get my H1B approval notice but if my H1B gets rejected in the stamping interview in India, can I come back to the US under my regular OPT(in the case of my stamping interview being before the end of my initial 12-month OPT) or under my OPT STEM extension ( in the case of my stamping interview being after the end of my initial 12-month OPT)?

            I really appreciate you taking the time to answer my questions.. Thanks a ton!

          2. administrator
            Saurabh

            Nithya,
            Once your H-1 is approved w/ COS, your F-1/OPT is no longer valid. If your H-1 stamping gets rejected, you cannot return on OPT as it would have become void once H-1 petition was approved.

          3. Nithya

            Hi Saurabh,

            Thank you for replying. Could you please elaborate on what is COS and how does it impact the H1B?

            And is there any other option for students on OPT to return to the US if their H1-B is rejected in the stamping interview?
            ( apart from trying for a company in India to apply for H1b again)

            Thanks a lot!

          4. administrator
            Saurabh

            Nithya,
            Here is an article on COS.

            You can return on OPT if it is still prior to Oct 2012 (as H-1 commence date is Oct 1). Otherwise you can enroll in another school and return on F-1 after getting an I-20.

          5. Nithya

            Hi Saurabh,
            I apologize for repeating the question but I am confused between 2 of ur replies

            My question was :
            In case I get my H1B approval notice but if my H1B gets rejected in the stamping interview in India, can I come back to the US under my regular OPT(in the case of my stamping interview being before the end of my initial 12-month OPT) or under my OPT STEM extension ( in the case of my stamping interview being after the end of my initial 12-month OPT)?

            And your answer was
            Once your H-1 is approved w/ COS, your F-1/OPT is no longer valid. If your H-1 stamping gets rejected, you cannot return on OPT as it would have become void once H-1 petition was approved.

            My another question was :
            And is there any other option for students on OPT to return to the US if their H1-B is rejected in the stamping interview?

            And your answer was:
            You can return on OPT if it is still prior to Oct 2012 (as H-1 commence date is Oct 1).

            My understanding from your replies is that “as long as I am not past the H1B commence date, I can still come back to the US under a valid OPT in the event of a H1B rejection at the stamping interview.”
            So, should I apply for H1B with COS to be able to do this?
            I would really appreciate it if you could confirm if this is correct.

            Thanks so much, Saurabh

          6. administrator
            Saurabh

            Nithya,
            Yes, that is correct understanding. You can return on OPT as long as OPT is valid which is Aug 28 in your case.

            When are you planning to go out of US?

          7. Nithya

            Hi Saurabh,

            Thank you for your reply. I am planning to travel to India sometime in July i.e., before August 28th( assuming I get my H1B approval notice by then) so that I can come back to the US, even if my H1B gets rejected in the visa stamping interview.
            In order to be able to do this, should I apply for my H1B with COS?

            Thanks Saurabh

          8. administrator
            Saurabh

            Nithya,
            Yes, apply w/ COS and then make sure you return to US prior to Aug 28. This way H-1 stamping is not required, and you will be on H-1 from Oct 1. Also, get this confirm w/ your lawyer.

          9. Nithya

            Thank you for replying to my questions patiently, Saurabh!

            My OPT ends on 28th August 2012.
            This is what I have planned:
            1. Apply for H1B with COS in early April 2012 through premium processing

            2. Hope to get H1B and COS approval notice by May 2012.

            3. Travel to India in June/July 2012 for H1B stamping
            ( The purpose of my trip is not for personal reasons but primarily because I want to go for the H1B stamping when I have the option of coming back on OPT, in case of rejection at the stamping)

            4. In the event of my H1B getting approved in the stamping, come back to the US in July 2012 under OPT and H1B kicks in on Oct 1 2012.

            5. In the event of H1B getting rejected in stamping, come back to US in July 2012 under OPT, apply for STEM extension before Aug 28th 2012 and reapply for H1B later.

            My primary focus is to be able to have some option of coming back to the US in the event of H1B being rejected in the stamping.I understand not going for stamping itself is also an option but I will definitely have to go to India next year and at that time,stamping will definitely need to be done, so I feel that I might as well take it before my OPT ends.

            Please review and do tell me if you see any loopholes in this plan.

            Thanks a ton!!

          10. administrator
            Saurabh

            Nithya,
            It looks ok. The only things to watch out for:
            – validity of your F-1 visa stamp
            – slim chances of F-1 visa stamp being canceled when going for H-1 stamping
            – carrying all necessary documentation to return on F-1/OPT

            You can also run this through your H-1 attorney to make sure it will work.

  18. Naman Patel

    Hi,
    My wife is on H4 visa in USA. She holds masters degree in microbiology (3 yrs bachelors+2 yrs masters) from India. Is she eligible for H1b visa (based on foreign masters degree) if any employer is ready to sponsor her visa? She does not have any work experience.

    1. administrator
      Saurabh

      Naman Patel,
      She might be eligible for H-1B (requirement being 12+4 years of education equivalent to US Bachelors). To be sure, she should get her degrees and marksheets evaluated by an education evaluation agency. They can tell what’s the US equivalent of her education.

      1. Naman Patel

        Saurabh,
        Thanks. Does that have to be minimum 120 semester credits of Indian degrees equivalent to US bachelors just by number OR it is dependent upon how many credits can get transferred?

        1. administrator
          Saurabh

          Naman Patel,
          It’s not a credit comparison. When you submit the documents are submitted to education evaluation agency they would look at the courses offered, university credentials etc and then determine whether the combined degrees are equivalent to US Bachelors or not.

          1. Naman Patel

            Saurabh,
            Thanks again. Now irrelevant bachelors and masters degree (e.g. Bsc Chemistry and Masters in Computer Application) can result into lower credentials? and if an employer sponsored job is related to only one of these degrees, then is there any chance that other irrelevant degree to job will not be counted in H1b filing? Is there a thumb rule of highest education obtained will be considered for H1b?

          2. administrator
            Saurabh

            Naman Patel,
            First, the person needs to have 4 years of education equivalent to US Bachelor’s degree. For each missing year of education, the person needs to have at least 3 years of relevant work experience. Second, the person needs to be qualified for the job. So if the offered position is in IT, the BSc is not really relevant to it, but MCA would be. USCIS will review the case and then make the determination whether you are eligible or not.

          3. Shweta

            Hi Saurabh & Naman,

            I am in the same situation… on H4 and have 3 years bachelors degree from India… to make myself eligible for H1 i have enrolled for a MBA from distance learning school in India… Will i be eligible after i complete my MBA (12+3+2yrs MBA distance mode). Please help me to understand this…. Thanks in advance for your help… please advise…

  19. Raj

    Hi Saurabh,

    Finally H1B has approved after frequent follow up with my employer.

    My question is I would like to know whether I was on out of status till my h1b s approved then when I was on L1A

    My case is L1Ato H1B transfer

    1) With previous employer I was on L1A, I94 expire date was June 2013. But I129 was expired on April 2011.

    2) Filed H1B on Nov 11st 2011 on Premium p

    3) Got an RFE on Nov 25th

    4) Got an approved status on Dec 10th via email from attoney, starting h1b valid date from Dec 10th 2011 to dec 9th 2012( employer said he responded to RFE and but online status still shown RFE)

    5) Based on email approval status ,I joined new employer from Jan1st onwards on H1B( did not get my physical petition yet)

    4) USCIS approved petition only on Feb 1st 2012 and received physical petiition shows approved working date from Feb Ist 2012 to Jan Ist 2013

    5) New employer ran payroll from Jan Ist onwards,

    My question is between Dec 10th 2011 to Jan 30 2012, No evidence that my petition is approved. Was I on be out of status these period. How would it affect my 485 GC process in future. My family l2 to h4 still processing and no approval yet.
    What should I do now? Will this affect my h1b stamping
    Please advise and your help is greatly appreciated.

    1. administrator
      Saurabh

      Raj,
      Seems like your attorney jumped the gun and said it was approved even though it wasn’t. If the attorney has an email from USCIS to show that H-1 was approved in Dec, it would help your case.

      I cannot say w/ surety whether it will impact you in future or not. USCIS may not ask for all the payslips for your US stay and only handful of them along w/ 797, visa stamps, I-94 copies etc. In that case, it will work out for you. However, if USCIS asks for payslips related to your last days on L-1A and early days on H-1, then that may impact your processing. Did you talk to your attorney about this? When are you planning to go for H-1 visa stamping?

      1. Raj

        Saurabh ,
        Thanks for your reply and I am planning to have H1b stamping atleast after having 6 months pay stub wiith new employer.

        My attonery and employer put blame on USCIS. comment from them is uscis did email approval then after one month once they received clear I94 Copy they approved physical petiton,

        To convince me, employer forwarded me the email (like) uscis approved email forwarded to Lawyer on Dec 10th..

        1. administrator
          Saurabh

          Raj,
          If you go after 6 months, chances of them asking for payslips for Dec, Jan are pretty low. In any case, keep a copy of all those documents and communication for your reference as it may come in handy not just w/ current employer but w/ future employers as well.

  20. Malobika Ray

    Hi Saurabh,

    I am an SAP consultant and working for IBM and have got about 5 years 9 months of experience. Currently I am on my onsite assignment at Denmark from my company.I want to file H1B but my company is making excuses for not filing my petition.So I want to do it on my own,which will require an employer who will do the same for me.Can you pls advise me on the same as I am not very sure how to go about this.
    Thanks.
    Malobika

  21. Pavan

    Hi Saurabh,

    I am currently working in UK, I was told that it is highly unlikely to get a new H1b visa if i am applying outside USA. Also, one of my contacts in US (employer) told me that I can get a H1 b application approved but its hard to get a Visa stamping. Is this true? please tell us your views on this.

    Regards,
    Pavan

    1. administrator
      Saurabh

      Pavan,
      Yes, it is comparatively difficult to get H-1 while being outside of US, especially b/c one has to go for visa stamping which involves another round of document verification etc. However, lot of eligible people are still able to enter US on H-1 visa when filing through a credible employer for a job that’s as per H-1 regulations. In other words, chances of success is case specific. and if you have all the necessary documents, working through credible employer, maintaining employer-employee relationship, then it should be ok.

  22. Soujanya

    Hi Saurabh,
    Will there be a lottery system for h1b filing in april 2012?
    If so, how does it work out. Let’s say my attorney submits my application in april 1st week. Will that start the process immediately or is there a time USCIS will wait for all the quota to be filled and then start processing each application?

    I also read in your posts that ‘Attorney has to file electronically for each candidate applying for h1b, before submitting application by post” Does it mean that in 2012 april 1st lottery system will be implemented?

    1. administrator
      Saurabh

      Lottery happens only if USCIS receives more petitions than the number of cap counts available. So if USCIS receives more than 65K petitions as soon as the quota opens, then they will conduct the lottery. This has happened only twice until now (2007, 2008) when the economic conditions hadn’t worsened in US. Looking at current market conditions, and how last couple of years H-1 trends went, I doubt if there will be lottery during 1st week of April.

      They will start processing the petition as and when they are received. Once they are done w/ all FY-12 petitions, they will start picking up FY-13 petitions in the order they are received. They will not wait for quota to get exhausted before starting to process them.

  23. Rinku

    Saurabh,

    I am L1B in usa and completing 3 years in this july 2012.
    my company will apply for extension but I have few questions and it will be great help if you can reply back to those.

    1. If I find employer and apply for H1B. and it got approved. what will happen to L1B extension which is filed by my company.
    2. If L1B extension got rejected and I get H1b then can I stay in usa till oct 1st so that I can start job on h1b form oct 1st. as my i94 is valid till feb 2014.
    3. If H1b get rejected and L1b get approved then will H1 extension impact this. I mean I can simply continue job on L1B. no headaches after that.

    Thanks.

    1. administrator
      Saurabh

      1. They can go on in parallel. Your ultimate status would be determined by what petition gets approved later
      2. Depends upon when L-1 gets rejected and when H-1 is filed and gets processed
      3. Yes, you can continue to work on L-1

      1. rinlu

        Thanks Saurabh for reply.

        1. Regarding first point.. If H1B petition approve(lets say by May 2012) before approval of L1B extension. and after that L1B extension also approve(let’s say Aug 2012)… then which one will be valid and which will be invalid.

        2. Also vice versa… if L1B extension approve(let’s say Aug 2012) then after this h1b also approve(let’s say Sep 2012)

        3. Also what I need to take care as I would like to be on H1b Visa if L1b and H1b both get approved whatever the sequence it get approved.

        Thanks

        1. administrator
          Saurabh

          1. Both will remain valid, but your status would become L-1 in this case. To go back to H-1 status, you will have to file COS from L-1 to H-1, or go out of country and enter on stamped H-1 visa.
          2. Your final status from Oct would be H-1 (assuming H-1 gets approved w/ COS). Until then your status would be L-1.
          3. What do you ultimately want to work on – H-1 or L-1?

          1. rinlu

            Thanks again Saurabh for Reply.

            I want to be on H1B. So m just thinking how to plan batter so that I can be on H1B once it is approved.
            Regarding first point..if H1B approved , can we somehow stop the process for L1B Extension.
            In case if H1B don’t approve then I have to stick with 2nd option L1B extension. if both rejected then will go back to india.

          2. administrator
            Saurabh

            L-1 extension needs to be withdrawn by the L-1 employer and not you. Here is one suggestion on how to proceed:
            1. Have the employer file H-1 for you in April/May w/ PP and w/ COS, so that it can get processed even before your L-1 expires.
            2. Have the L-1 employer file L-1 extension for you in June-July, so that you can continue to stay and work on L-1 until Oct 2012.
            3. Resign from L-1 employer and ask them to withdraw L-1 extension in Sep 2012.
            4. Start working on H-1 from Oct 2012

            If your H-1 gets denied, then you can continue to work for L-1 employer even after Oct and beyond unless L-1 gets denied.

            Does that make sense?

  24. Abhi

    Hi saurabh,
    . I am a graduate n presently pursuing my mba which will be completed by june of this year. Can i apply h1b visa and if so, whats the process. Plz help me out

  25. Riya

    Hi Saurabh,

    I had my H1B interview on 12th Jan2012. I got 221G blue slip and they have asked us to submit all documents again. Could you please tell me what is this all about and your experiences with such cases?

    Thanks In advance..

    1. administrator
      Saurabh

      Are you working for a consulting company? AFAIK 221g blue is typically given out to employees working for consulting companies in EC or EVC model.

      You will have to submit al the required documents, and all of these will be closely scrutinized. So be very thorough and careful w/ the documents you submit. Did they ask anything about employer-employee relationship?

      There is no set time frame for the processing, and it can take up to several months to process.

      1. Riya

        No…I’m working for a Service provider software company.
        Yes they did ask about the employee employer relation like who is responsible for my salary,insurance,who will provide the necessary hardware/software things.

        what are the chances of approval in such cases??

        1. administrator
          Saurabh

          Service provider software companies are also like consulting companies in sense they have clients and the employer is paid for the services the employee provides to the client.

          Are you working directly for a client or are there other companies in b/w? Chances of approval will depend upon the documents you submit and what USCIS finds out as part of their verification process.

          Usually these cases are more complex, and can take some time to process. 2-3 months or more.

          1. Riya

            There are no other companies involved. It’s only my organisation and client.
            Anyways..Thanks for sharing this information.

          2. Riya

            Hi Saurabh,

            as discussed earlier i had received 221G for my H1-B petition. I received a letter from Mumbai USCIS saying :
            Based on the interviews and documents submitted to the U.S. Counsulate General, Mumbai, we have returned your petition to the USCIS for review and possible revocation.

            They have sent back my petition for re-examination.

            Have you seen any such case before?

          3. Riya

            Hi Saurabh,

            My org filed Amendment for my 221g…we have received approval for that amendment. What would be the next step now?
            Is this a positive sign to get my visa processed soon?

          4. administrator
            Saurabh

            Riya,
            So this was H-1 amendment and not H-1 petition re-affirmation by USCIS. So you can schedule another visa appointment and then go for H-1 interview based on amended petition.

          5. Riya

            Will they ask anything related to last 221G, when i’ll appear for H-1 amendment interview. After interview will that be a regular process like other H1B visa’s or any other process is involved in case of H-1 amendment. If you can tell me the difference between regular H1B petition and H-1 amendment that will help.
            Thanks in Advance.

          6. administrator
            Saurabh

            Riya,
            Yes, they can ask about the previous 221g. Once your visa is stamped, you can treat it like normal H-1 visa and petition. Amended petitions are not much different from regular petitions. It just means that the employer wanted to change one or more underlying facts in original petitions, and hence got it amended.

          7. Riya

            Hi Saurabh,

            My visa interview is scheduled in coming week. Could you please guide me what all things to be taken care at the time of interview being 221G case?
            In case I give two different answers like 1st time I answered particular qs as A and this time if i give answer for that same qs as B. what will happen?
            I’m asking this as last time there were qs related to employee and employer relation, and due to some miscommunication I answered it wrongly and was not able to provide any explanation on the same.

          8. administrator
            Saurabh

            Riya,
            It would be ok to give different answers. If they ask about the discrepancy you can tell them that things have been corrected since the last interview and the employer is now willing to enforce EE-Relationship blah blah way.

          9. Riya

            Hi Saurabh,
            I appeared for interview once again on last week. I was asked for only 2 questions, like have you applied before is the client and petitioner same as previous case. and gave me a yellow slip saying your case is still pending for possible revication, wait until you hear back from us.
            Could you please tell me what was wrong in this process?

          10. administrator
            Saurabh

            Riya,
            The officer assumed nothing changed as it was for the same employer and client. And so they rejected the stamping again. You should go through another employer (direct employment) for better approval chances.

          11. riya

            Is thr any other way…for e.g. If my org withdraw my old petition and if we submit new petition for 2013cap in premium processing will it work?

          12. Riya

            hey Saurabh….cn u suggest something
            Is thr any other way…for e.g. If my org withdraw my old petition and if we submit new petition for 2013cap in premium processing will it work?

          13. administrator
            Saurabh

            Riya,
            They can file a brand new petition w/o withdrawing the old one, and you can then go for H-1 stamping. But I suspect it will meet the same fate as it will have some facts like previous petitions.

        2. Supriya

          Hi Saurabh,

          I’m holding valid H4 visa and I had travelled to US fo 4 months on H4. I’m back in India now and my organization is willing to process my L1-blanket.
          My Immigration team informed me that when anyone appears for L1 interview first visa officer will cancel all other valid US visa and then start with interview.
          So if above statement is true then i’ll lose my H4.
          In case my L1 gets rejected then again I have to apply H4 visa, as I’ll be travelling to US with my husband as dependent.
          Could you please tell me if there will be any issue if i re-apply H4 when I have L1-blanket rejection?

          Thanks,
          Supriya

  26. Jayraj

    Hi Saurabh,
    I am currently on J1 Internship Visa, my visa expires on April 2012. My Employer wants to hire me on permanently. I am working with Staffing Company, I am their Staffing Manager. The company is based in Utah and has presence in 5 different states. Can you provide me some information about the Process they would need to start to hire me on? Also do I need to return to India to have my visa processed again or I can do it from here?
    Thanks for your Help!

  27. renee

    Saurabh, You made some really good points and thank you for that insight. Would a h1b transfer be possible, if I get it done before the USCIS has canceled my previous h1b? that’s in the interim period while the application is being processed by the USCIS.

    Also a small-sized company (15-50million), will it be considered for a H1B application… or should i consider a company with a bigger size, client rooster etc.. since i got 3 offers and I am wondering which one would be my best bet.

    Thanks again, Renee

    1. administrator
      Saurabh

      When picking a company, it’s better to go w/ larger companies who are credible and have more manpower to find projects for you. It also improves the chances of approval (but there are other factors as well that impact the approval).

      I am not sure if you can use the old petition during the interim period. I think you can, but you will have to check w/ an attorney for that.

  28. aditya mittadoddi

    Hi, thanks for the response. I just wanted to know for a normal student if he goes to India for how long can he stay back as in my case I am returning to USA after one year and having a valid visa. So the question is if a normal F1 visa student stays in India for one year can he return to USA or not.

  29. aditya mittadoddi

    Thanks for the previous response but I want to know more thing, kindly help me out. I have got stuck in India because of the Tri valley university case. I came on vocation in Nov 2010 and got admission for Jan 2012 in a reputed university. The thing is it will be more than 1 year for me outside USA ( staying in India ). What the effects of this, further are there any entry problems regarding this.

    With regards
    Aditya

  30. aditya

    I am actually a tvu victim and when came to India on vocation got stuck. Now I am going back to USA as a student. The thing is I have a MBA degree from Virginia and after completing my opt, went for tvu and got stuck. Now as I am going back as a student, can I file my H1B with my completed MBA degree from Virginia and leaving the current program.

    1. administrator
      Saurabh

      Yes, an employer can file H-1 for you in Masters quota based on your MBA degree from Virginia. However, as you will be entering US on F-1, and then moving to H-1 you may be questioned about your intent. Query can also be raised regarding your TVU enrollment as USCIS would like to ascertain that you maintained status.

  31. Mahesh

    Hi,

    My Company has filed H1B visa for me on June 15th. They have given me the recipt number and the status in the www.uscis.gov is showing as Intial review. Can any one tell me how much time it will take for the approval and stamping

    -Mahesh

    1. administrator
      Saurabh

      Approval might take anywhere b/w 2-4 months. If RFE is issued, it may take even longer.

      Stamping is a different process, and you can schedule an interview once your petition is approved. Successful stamping happens within a week, but if 221g is issued, it may take months.

    2. Nuresh

      Hi Mahesh,

      Did you get any updates on your case?
      Please let know once u got the updates because My case also shown the same status as “Initial Review” only.

      -Naresh.B.

      1. Kavitha

        Hi Naresh,

        My case status is also “Initial Review” filed on Sep 13th, Regular processing at Vermont centre. How about your case status ?

        Regards
        Kavitha

  32. Kumar

    Hi Saurabh,

    My H1 is valid till this September and extension is due, i have to go to india and was wondering should my employer file it now or after i came back from INDIA. is there any issue with it if file before i leave. what are the chances that i will get an extension after coming back?

    Thanks
    Kumar

    1. administrator
      Saurabh

      To return back you need:
      – an approved 797
      – an unexpired H-1 visa stamp

      I don’t know when you plan to return to US, but you need to make sure that you have both of them w/ you. And to get new H-1 visa stamp, you need an unexpired approved 797.

      To answer more accurately I need to know when you plan to return to US and when your H-1 visa stamp is expiring.

  33. Varun

    My company filed H1B for me this year. I m wondering when should I ask my company for any sort of transaction number to track the progress of H1B application? I am presently on OPT. When does USCIS comes up with news update about the number of applicants for 2012? Thx

    1. administrator
      Saurabh

      USCIS publishes weekly quota counts. I expect the first numbers to be published next week. Once USCIS receives your petition, they would issue a receipt number and send it to your employer. You can track your petition online using that receipt number.

  34. Hitesh

    My spouse works in US on L1 visa and I am here on L2 visa with EAD. But I don’t work here.

    We all [me and my wife] aregoing back on March 31, 2011. Will EAD remain valid till next time I come to US[If EAD doesn’t expire till that time] or I have to reapply for EAD every time I come to US as I-94 changes every time?

    Can I visit India multiple times on L2 with EAD status?

    1. administrator
      Saurabh

      EAD will remain valid till it’s validity period. It will not be impacted by your travel outside of US.

  35. administrator
    Saurabh

    This is 2 year late. Attorneys and desi consulting companies have already made their share of money in the lotteries on 2007 and 2008.

  36. Mahesh

    Hi Everyone and Happy New Year,

    1. this is only a ‘proposed’ rule, it is not implemented.

    2. it’s not a “‘lottery”, it’s just a way for the USCIS to look at and review a summary of the visa application (it potentially saves sponsor companies money and risks which can encourage more to sponsor – that’s good right!)

    3. based on current market conditions etc, it’s highly unlikely and almost impossible there will be a massive flood of H1b applications to create a lottery selection in 2011 (there would have to be much more applications than there are available visas in the first 1 week of filing opening for that to happen, and that has only ever happened 2 times in the whole history of the H1B visa program)

    4. it’s a ‘good’ thing, every year the USCIS wastes lots of their time reviewing and processing applications and have to reject about 10-15% because of incorrect filing, mistakes, not following correct rules etc etc – this new way wouldn’t waste everyones time and money.

    For everyone that goes through the H1B sponsorship process properly and makes sure they get a good H1B sponsorship employer company, and file applications correctly in accoradnce with all the requirements, rules and regulations; by using professional and ‘qualified’ services do Not have to worry.

    1. administrator
      Kumar

      Mahesh, Good points…I think USCIS may use it to help them with Lottery, just in case….it says in the rule …I think, primary purpose is to save overhead for everyone and also cost.

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