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ZolTombi

H-1B transfer

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Case:

Applied for H1b transfer from company A to company B

Questions:

1. Am I still in grace period till Nov 14th, so that I can file transfer with other company?

2. Can any other company apply for my h1b now?

3. As I had h1b of which I have not used the entire period (expiry: Sep 2019), am I cap exempt in order to file h1b with other company? If so, can they file only next April?

Timeline: 

Transfer filed: July 10, 2018

Received receipt: July 15, 2018

RFE received: July 20, 2018

Last day of work at company A: Sep 15, 2018

Grace period: Sep 16, 2018 to Nov 14, 2018

Joined company B: Sep 20, 2018

RFE filed: Oct 13, 2018

Transfer denial: Oct 17, 2018

Reason: Not enough work for specialty occupation for 3 years.

 

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1.Am I still in grace period till Nov 14th, so that I can file transfer with other company?
H1B 60 days Grace period meaning > DHS allows a grace period of up to 60 days for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, if they are laid off due to the circumstances beyond their control.
The H1B 60 days grace period means that you will not be considered “out of status” for almost 2 months following your unemployment. This will give you the opportunity to look for other employer or apply for a visa change of status.
H1B Maximum 60-Day Grace Period after job loss.On loss of employment, the non-immigrant worker has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to be sponsored for a change of employer, apply for a change of status, or simply prepare to leave USA.
How to Request H1B 60 days Grace Period? There is no official form for requesting the grace period. You can file a standard H1B transfer (change of employer or change of status) during the grace period. If you want, you can add a cover letter with your application explaining the situation. But, it's not required officially.

2. Can any other company apply for my h1b now?
Under the American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee if certain requirements are met. If the employee is not currently in H-1B status, he or she cannot change employers or begin working until USCIS approves the Form I-129 petition.

The question here is what is your current status, did your Employer A revoke your H1B petition?
The H1B transfer bill approved in the Senate and House (bill S.2045) now has rules that enable valid H1B visa holders to change jobs upon the filing of 
1. a new petition by the new employer as long as the individual is in lawful status at the time of filing and
2. has not engaged in any unauthorized employment since his or her last lawful admission.  
Under the H1B portability rules of the American Competitiveness in the 21st Century Act (AC21), an H1B visa holder may transfer to start work (a new H1B job) with a new employer, provided that the new US employer follow the procedures to file an H1B transfer visa application on behalf of the worker. 
Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.

3. As I had h1b of which I have not used the entire period (Expiry: Sep 2019), am I cap exempt in order to file h1b with other company? If so, can they file only next April?
Straightforward answer is yes you should be CAP Exempt,

However, please see this article will explain how and why there is a possibility of you not falling into the CAP or CAP-Exempt Scenario in the future if you happen to leave the United States 
https://www.murthy.com/2017/04/20/h1bs-cannot-be-transferred-misconceptions-around-h1b-employment-change/


 

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16 hours ago, jagjag said:

Reason: Not enough work for specialty occupation for 3 years

May I ask is this reason related to your H1B Petition Denial or a RFE.

Since you haven't mentioned other specifics or background of the circumstances that led USCIS to deny your H1B petition.

The United States Citizenship and Immigration Services (USCIS) says it reserves the right to change the duration of H-1B visa grants:

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

The USCIS adds: “The updated policy guidance aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers. Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.”

This change in policy from the USCIS isn’t necessarily shocking. Last March, the agency asked its officers to better identify specialized workers within the H-1B program. At the time, it said in a memo that “an entry-level computer programmer position would not generally qualify as a position in a specialty occupation.”

Please refer to this USCIS memo https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

 

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