H1B transfer from non profit employer to profit employer

[jaysikka]

Hi, I have a H1B visa from my current employer which is a non profit organization. I have got another offer and this new employer is a profit making organization. I know my new employer needs to apply for a new H1B that goes through cap but the flip side is the quota for FY12 got filled on November 22nd, 2011. Do I have any option right now or I have to wait till April 1, 2013 for this employer to fill a H1B for me? Any details or suggestions will be highly appreciated. Thanks in advance.

[JoeF]

If you haven't been counted for the quota yet, the new employer can only file an H1 from April 1, 2012 on, for a start date of Oct. 1, 2012.

[Live4GC]

Isn't that just a Transfer ?

[JoeF]

Isn't that just a Transfer ?

There actually is no such thing as a transfer.

It is always a new H1.

If the person has not been counted for the quota yet, the non-exempt employer can only file a new H1 from April 1, 2012 for a start date of Oct. 1, 2012.

[jaysikka]

So, there is no way to work this out? My concern is this new employer will not wait for these many months. I have to let this thing know to my new employer then.. Thanks for replying..

[JoeF]

So, there is no way to work this out?

No, there isn't. It is the law.

[neelsur]

Hi JoeF

Me too exactly in the same situation as jayasika. The company withdraw the job offer as the quota has been filled. I am about to get laid off at my current non-profit company. I have seen an article from Murthy.com ( http://www.murthy.com/news/n_h1bemp.html ) and I thought, as per the article I will be able to start working with new cap-subject employer as early s April 1st if another employer file my H1-B.

JoF , It would be great If you can explain this little more.

What would be my status until October,1st , If I got laid off by march and a new cap-subject H1-B is filed on April 1st for me and it is pending.

Do I have to go for H4 status ( I have my spouse in H1-B) to protect my status until october 1st 2012 ?

If I could find another non-profit employer can I work for them until october 1st, even though my cap-subject H1-B is pending

Could you please advice me what is the best options for me.

thank you

[JoeF]

I assume you have also read this part: "Thus, the common interpretation of this has been that, even if work is authorized between the time of filing and before October 1, 2007, that employment must cease after the H1B petition is decided."

So, even if you may be able to work for the new employer while the new H1 application is pending, you would then have to stop working when the new H1 is approved if the approval comes before the start date.

So, it doesn't help much at all. It is pretty unrealistic to work with the new employer for a few weeks/months and then have to stop again.

[neelsur]

Hi JoeF

Thanks for the clarification. If the cap-subject Employer is willing and he is aware of this gap ,then can I go for this option?

It would be great to know If some one has already gone through this. I am sure this may not be the first case.

Will I be out of status in the gap ?

Thank you

[JoeF]

Hi JoeF

Thanks for the clarification. If the cap-subject Employer is willing and he is aware of this gap ,then can I go for this option?

It would be great to know If some one has already gone through this. I am sure this may not be the first case.

As I said, it is rather unrealistic. It may only be a few weeks if the H1 is approved quickly.

Will I be out of status in the gap ?

Yes, unless you go back to work for the old employer (which is also unrealistic.) So, you most likely would have to leave the country and come back around Oct. 1.

As you can see, this would only complicate things. It is always better to keep things simple and straightforward.

[viharik]

Hi JoeF,

Thanks for all the helpful information above. It was very useful. I have few doubts mentioned below with regards to moving from a cap-exempt employer to a cap-subject employer. could you please help me with the answers.

1) From above discussion, i assume that there would be no problem continuing with my cap-exempt employer till Oct 1st irrespective of whether my cap-subject H1B got filed/approved?

2) When will some one be treated as 'counted under the cap'? Is it soon after my cap-subject employer filed a petition for me or after the petition is fully approved?

3) If in any case, say the (cap-subject) petition is rejected. so If another cap-subject employer want to file a new petition for me, is it possible if the cap is over by that time?

4) What happens if two cap-subject employers (say X and Y) file petitions for me? so, X files petition for me and i start working for X and by the time it gets approved/rejected, i will move into Y since he starts filing for me at that time..Based on the discussion above, i feel this is legally correct. Of course i know i am complicating things but just curious to know the different possibilities.

Thanks in advance.

[JoeF]

Hi JoeF,

Thanks for all the helpful information above. It was very useful. I have few doubts mentioned below with regards to moving from a cap-exempt employer to a cap-subject employer. could you please help me with the answers.

1) From above discussion, i assume that there would be no problem continuing with my cap-exempt employer till Oct 1st irrespective of whether my cap-subject H1B got filed/approved?

Correct.

2) When will some one be treated as 'counted under the cap'? Is it soon after my cap-subject employer filed a petition for me or after the petition is fully approved?

When it is approved.

3) If in any case, say the (cap-subject) petition is rejected. so If another cap-subject employer want to file a new petition for me, is it possible if the cap is over by that time?

The quota would still have to be open at that time, because a rejected H1 application is not counted for the quota.

4) What happens if two cap-subject employers (say X and Y) file petitions for me? so, X files petition for me and i start working for X and by the time it gets approved/rejected, i will move into Y since he starts filing for me at that time..Based on the discussion above, i feel this is legally correct. Of course i know i am complicating things but just curious to know the different possibilities.

Well, first off, no sane employer would spend the money for an H1 if the employer doesn't have a reasonable expectation of you going to work there.

This "multiple H1 applications" stuff only comes up with people going through shady consulting companies. That of course also dramatically increases the risk of a denial.

Find a real employer, and go with that employer only.

[viharik]

Thank you very much for the clarifications JoeF. Just forgot to put one more question..

5 ) If i go to my home country (either before/after october 1st) after changing to a cap-subject employer, will i need to go for visa stamping again? my visa has already been stamped and I-94 is also valid for another two years with regards to my cap-exempt employer.

[JoeF]

If you have a valid H1 visa, you can just enter with that visa in combination with the new H1 approval notice.

The I-94 doesn't matter, since you surrender the I-94 when you leave, and you fill out a new I-94 when you enter. The I-94 specifies the allowed time in the US only.

[Ab13]

Dear JoeF, thank you so much for the information you have provided here. I am also in the boat where I am trying to find my way out from H1-B cap exempt to industrial H1-B. After reading this post and some other posts on this website, I am confused and was wondering if you would help me get a better understanding on this situation:

I found the following question on FAQ section at Murthy Law Firm:

 

Question 5. Can I begin working for my new employer once I have filed the H1B petition? 

It depends. If one is currently in H1B status with another company, then s/he may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, one generally must await an approval of the H1B petition and a change of status. It is important to verify one's eligibility to commence employment with the new employer to avoid unauthorized unemployment, which may lead to problems later, when attempting to adjust status to lawful permanent resident (LPR).

If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer. Status issues can be complicated and, if there is any question as to whether or not one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.

 

My questions are:

1. “If the H1B petition is approved as a change of employer ……”

Can I not work for both the employers (cap exempt and can non exempt) simultaneously (say 30 hours each per week) or do I necessarily have to show that I am changing employer. What is concurrent employment?

1. “If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice…..” Can you please explain what this sentence implies ?

Thank you so much for your help.

[jairichi]

Dear JoeF, thank you so much for the information you have provided here. I am also in the boat where I am trying to find my way out from H1-B cap exempt to industrial H1-B. After reading this post and some other posts on this website, I am confused and was wondering if you would help me get a better understanding on this situation:

I found the following question on FAQ section at Murthy Law Firm:

 

Question 5. Can I begin working for my new employer once I have filed the H1B petition? 

It depends. If one is currently in H1B status with another company, then s/he may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, one generally must await an approval of the H1B petition and a change of status. It is important to verify one's eligibility to commence employment with the new employer to avoid unauthorized unemployment, which may lead to problems later, when attempting to adjust status to lawful permanent resident (LPR).

If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved without an I-94 card, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer. Status issues can be complicated and, if there is any question as to whether or not one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.

 

My questions are:

1. “If the H1B petition is approved as a change of employer ……”

Can I not work for both the employers (cap exempt and can non exempt) simultaneously (say 30 hours each per week) or do I necessarily have to show that I am changing employer. What is concurrent employment?

1. “If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice…..” Can you please explain what this sentence implies ?

Thank you so much for your help.

(1) It applies only for cap subject H1B employees. When they move from one employer to another they can begin to work for new employer once they receive receipt notice of H1B application with USCIS. With lot of cases of rejection during this move it is always suggested to wait for approval before moving to a new employer. Since you are not subject to cap it does not apply for you.

 

(2) Date in I94 determines your date of legal stay in US. Normally when a change of employer is approved the approval notice contains a revised I94 date based on the duration of approval sought by petitioner. In some cases no new I94 document is provided with approval notice. For those cases the employee has to exit US, get a visa stamped, re-enter US and get a new I94 (date till which they are in legal status in US)

[Ab13]

(1) It applies only for cap subject H1B employees. When they move from one employer to another they can begin to work for new employer once they receive receipt notice of H1B application with USCIS. With lot of cases of rejection during this move it is always suggested to wait for approval before moving to a new employer. Since you are not subject to cap it does not apply for you.

 

(2) Date in I94 determines your date of legal stay in US. Normally when a change of employer is approved the approval notice contains a revised I94 date based on the duration of approval sought by petitioner. In some cases no new I94 document is provided with approval notice. For those cases the employee has to exit US, get a visa stamped, re-enter US and get a new I94 (date till which they are in legal status in US)

Thanks Jairichi for clearing the situation to me. Now that this thing does not apply to me, can you please tell me, from your experience, if there is any way I can start working for an industry employer earlier than October 1 (assuming the new industry employer file files my new H1-B petition on April 1, 2014). Thank you so much for your help.

[jairichi]

Thanks Jairichi for clearing the situation to me. Now that this thing does not apply to me, can you please tell me, from your experience, if there is any way I can start working for an industry employer earlier than October 1 (assuming the new industry employer file files my new H1-B petition on April 1, 2014). Thank you so much for your help.

As JoeF had mentioned if your are in active H1B status with your current employer (non-profit organization) then using AC21 portability rule you could start working for your new employer after filing a H1B cap subject petition in April 2014. But, once approved you have to stop working and exit US and re-enter by 1st Oct 2014. Normally it takes 3 to 5 months for a decision from USCIS on H1B petition by regular processing. You might be lucky in that case. Consult with an immigration lawyer from murthy firm.

 

I was in the same situation and lost many opportunities to join for profit companies. I decided to move out of US and got an excellent opportunity outside US and now waiting to take up the position.

[Ab13]

I was in the same situation and lost many opportunities to join for profit companies. I decided to move out of US and got an excellent opportunity outside US and now waiting to take up the position.

Thanks Jairichi for this information. Just curious to know - did u say that u have moved out of USA and now waiting to take a position elsewhere? Best wishes for you future endeavors and thanks again fro your help.

[jairichi]

Thanks Jairichi for this information. Just curious to know - did u say that u have moved out of USA and now waiting to take a position elsewhere? Best wishes for you future endeavors and thanks again fro your help.

@ Ab13: That is correct. Thank you

[Manish kumar]

Hi Guys,

I am in similar situation.

• I work for a Profit making Consulting firm.
• I140 is approved for more than 180 days with Profit making Consulting firm.
• Finished 3/6 years on H1-B with this Profit making Consulting firm.
• Now, I have a offer from CAP Exempt NON Profit organisation (higher Ed)

I have an H1B from a "For Profit" employer and i also have approved I140 from the same employer.

My questions are :

1. Will i have any issues in future in transfering my H1B from this non-profit employer to any for profit employer.
2. What happens to my I140 from Profit Making employer ?
3. What happens to I140, if in future it gets approved from NON Profit Making employer ?

Please suggest.