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?
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.
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