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My H1B petition is pending and I received an RFE. Am I eligible to file a new H1B with a different employer, cap is full?

San Francisco, CA |

I am on OPT and my employer filed H1B but I received a complex RFE because wrong LCA was submitted. USCIS has desired to submit a new LCA approved *prior* to current filing date and documents to prove that position is a specialty occupation. Am I eligible to file a new H1B with a new employer or amend this petition? I am already counted in cap so can I apply for a new H1B with new employer which current RFE is pending?

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Attorney answers 4


I agree that the LCA cannot be corrected, and that you are not counted against the cap. There is probably not much you can do, but it would be a good idea to have another attorney review the entire petition. Perhaps there is a creative solution available. For example, although you cannot amend the LCA, you may be able to amend the petition to conform to the LCA (if the employer actually has a job opening available that fits the "wrong LCA"). Other than that, you may wish to consider a malpractice action against the attorney. That is a clear error, and your damages may be extensive. Of course, if your OPT expires after April 1, 2013, you may have another shot at H-1B. You should also consider a STEM OPT extension.

This is only a preliminary response to an inquiry, based on incomplete information. Helpful advice and counsel can only be provided after you have discussed your case with Mr. Bach, he is familiar with all of the circumstances of your case, and the advice is provided in writing. Any opinion provided here should not be relied upon for any purpose. No attorney/client relationship is formed until you have formally retained our law firm to represent you. We are not responsible for any action or lack of action you take based on this preliminary response.


If USCIS deny your employer's petition, you will not be counted against the cap. You can not amend the petition.

This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. Consult with a qualified attorney before making any legal decisions. Gen Kimura, (832) 247-6932.


Can't do a new one at this point.


Someone made an uncorrectable mistake.

IMMIGRATION LAW PROFESSOR for 10 years -- LEGAL DISCLAIMER: This answer is offered for informational purposes only. It does not constitute an attorney-client relationship.

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