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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

Posted

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.

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Asker

Posted

Thanks for responding 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

F. J. Capriotti III

F. J. Capriotti III

Posted

Here is why you need to meet with an attorney: 1. No you can not contact them because (a) it is not 'your' visa ... it belongs to the original company that filed the papers ( b) CIS never, NEVER responds to this type of inquiry. 2. You can not send a FOIA request because the petition is the property of the company ... thus you are not a 'qualified' applicant. Now do you see why you need to consult with an attorney?

Asker

Posted

Thanks for responding again. But, if that past petition is futile, how can consulting with an attorney help now? If I had something which can be used to build a case for an approval, then yes but not with present situation Anyway, thanks for your time and advice.

F. J. Capriotti III

F. J. Capriotti III

Posted

You are assuming that you are providing us with sufficient facts (on an internet blog) to be able to provide you with firm and reliable guidance .. .that is an incorrect assumption. I can't tell you how many times people have described their paperwork to me .. only to learn that, once I have the papers in-hand, they have completely mis-understood and mis-described them. Mind you, they weren't trying to deceive ... they just don't have the 'learned-eye' of an experienced attorney. Plus, it shouldn't cost you anything to talk to the company attorney .. thus, it isn't necessarily futile. Of course, you can always wait until April 2014 and file a new petition at that time .. which will make it unnecessary for you to research the old paperwork.

Asker

Posted

The facts I provided above are sufficient. This is what I told the new company immigration attorney. He felt I AM cap exempt based on the past approved petition. He was suggesting that once the new company files for a H-1B petition, we can use AC21 act and I can start working for them when the filing receipt notice is obtained. Now, I know if USCIS refuses the H-1B petition(which all attorneys who responded here feel would occur) claiming I am cap subject, I would be out of status. Thanks for responding.

Posted

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

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Posted

Thanks for responding 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

Robert Louis Brown

Robert Louis Brown

Posted

CIS will not give you an advisory opinion on your case. You may call and ask but if they give you an answer, you cannot depend on it. Foia normally takes 6 months or more. 321.208.7324 immigration@rbrownllc.com www.brownimmigrationFL.com Robert Brown LLC 4767 New Broad Street Orlando, Florida 32814

Asker

Posted

Thanks for your time and advice.

Posted

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.

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Posted

Thanks for responding 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

Posted

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.

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Posted

Thanks for responding 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

Jeffrey Adam Devore

Jeffrey Adam Devore

Posted

You'll know what they think when they adjudicate the application. That's when the determination will be made.

Posted

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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