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

Asked about 1 year ago - 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.

Additional information

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. Carl Michael Shusterman

    Pro

    Contributor Level 20

    18

    Lawyers agree

    1

    Answered . 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... more
  2. F. J. Capriotti III

    Contributor Level 20

    6

    Lawyers agree

    1

    Best Answer
    chosen by asker

    Answered . 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... more
  3. Robert Louis Brown

    Pro

    Contributor Level 19

    6

    Lawyers agree

    1

    Answered . 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

  4. Jeffrey Adam Devore

    Pro

    Contributor Level 20

    4

    Lawyers agree

    1

    Answered . 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... more
  5. J. Thomas Smith Ph.D.

    Pro

    Contributor Level 20

    3

    Lawyers agree

    1

    Answered . No.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.... more

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

26,676 answers this week

2,807 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

26,676 answers this week

2,807 attorneys answering