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
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.
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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.
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Orlando, Florida 32814
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.
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Carl Shusterman, Esq.
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(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.
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.
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