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Are filing fees refunded by USCIS if USCIS rejects a cap subject H-1B petition?

Orlando, FL |

If I use a 2010 approved H-1B petition(which was not used), to claim H-1B cap exemption now(as I was counted in the cap once when my 2010 H-1B petition was approved) for a new private employer who is cap subject, will USCIS refund the filing fees(I-129 filing fee, fraud detection fee and ACWIA fee), if they reject the claim that I am cap exempt?

I understand for H-1B petitions which are not selected in the lottery, USCIS refunds the filing fees.

Thanks to all attorneys who responded. 1. In that case, can asking USCIS if I am cap exempt or not an option? Will USCIS respond to emails, postal letters or phone calls for such a question? 2. Or, can sending a request to USCIS Freedom of Information Act(FOIA) office to know if I am cap exempt or not, another option? I hear generally the FOIA request takes 6-9 months, if not more. Thanks

Attorney Answers 5


  1. Best answer

    My colleagues are correct. They will probably keep the fee.

    You should really meet with the new company's immigration lawyer ... not a non-attorney in HR ... to discuss this in more detail.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.


  2. If they fee in the decision and make a determination that you are not eligible for the H-1B, they probably will not refund your filing fees. if your matter is rejected before accepting your filing fee, then the fee will be returned. Based on your description, it is likely they will keep the filing fees.

    321.208.7324
    immigration@rbrownllc.com
    www.brownimmigrationFL.com
    Robert Brown LLC
    4767 New Broad Street
    Orlando, Florida 32814


  3. Only if the H-1B petition is not selected by the lottery and the USCIS has not reached the merits will the filing fees be returned.

    Please click the link below for additional information.

    ---------
    Carl Shusterman, Esq.
    Former INS Trial Attorney (1976-82)
    Board Certified Immigration Attorney (1986 - Present)
    Schedule a Legal Consultation - Know Your Rights!
    600 Wilshire Blvd., Suite 1550
    Los Angeles, CA 90017
    (213) 394-4554 x0
    Web: www.shusterman.com (English)
    www.inmigracion-abogado.com (Spanish)

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


  4. Under these circumstances no, the filing fees will not be refunded. Your claimed eligibility and if it is determined you are not, you got the adjudication you asked for, just not the desired result.

    While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.


  5. No.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

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