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mirakkel6

Change of employer during cap-gap

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Dear Members,

Another question on behalf of a friend of mine:

My friend is in the cap-gap and wants to change the employer. Can he do so

(i) Before the H-1B approval?

(ii) After the H-1B approval?

Also kindly let me know the procedure in detail for both the cases (i) and (ii).

Thanks and regards,

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Dear Members,

My previous question (on behalf of a friend of mine) was not answered. I did some research on it and have found something, which I would like to share with you. I also would like to have your comments on it.

The original questions were:

My friend is in the cap-gap and wants to change the employer. Can he do so

(i) Before the H-1B approval?

(ii) After the H-1B approval?

Also kindly let me know the procedure in detail for both the cases (i) and (ii).

Since my friend is more interested in question (ii), I have tried to find an answer to it. Most probably the answer is YES.

Please see the following link for details:

http://www.************************

Still I have a doubt.

If you see "Eligibility requirements to qualify for H1B Portability" from the above document, you will find that one needs to satisfy five criteria. My doubt is about the 4th criterion, which states that:

"Previously issued H-1B: The nonimmigrant worker must have been previously issued an H-1B visa or otherwise been provided an H-1B status in the US."

My doubt is as follows:

If my friend has an approved H-1B (The I-797C is the only piece of paper that he has before October 1), will he be considered as if he had been previously issued an H1-B visa? Will he be allowed to start working with the new employer before October 1?

It will be great if someone kindly clarifies.

Thanks and regards,

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Due to some reason or the other, the URL in the previous post was edited. Let me quote the relevant text for your convenience:

"Eligibility requirements to qualify for H1B Portability:

Because the H1B portability provisions bestow the privilege on the H1B nonimmigrant worker to start working for the new employer before the H1B petition is approved, the requirements to qualify for H1B portability are slightly rigid. To be eligible for the H1B portability provisions the following requirements must be met:

1. Lawful admission into the US: The nonimmigrant worker must have been lawfully admitted into the United States;

2. Non-frivolous petition: The new employer must have filed a non-frivolous petition for employment before the date of expiration of the H-1B nonimmigrant worker's period of authorized stay in the US (a ‘non-frivolous' petition is one that has a reasonable basis in law or fact);

3. Only legitimate employment: The nonimmigrant worker must not have accepted any unauthorized employment subsequent to his or her admission and before the filing of the new H-1B petition.

4. Previously issued H-1B: The nonimmigrant worker must have been previously issued an H-1B visa or otherwise been provided an H-1B status in the US.

5. Current status in the US: The nonimmigrant worker must be in an unexpired status (i.e. current) when the H-1B petition is filed.

Only if all of the above requirements are met, can the H1B nonimmigrant worker start working for the new employer as soon as the new petition is filed."

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So the question about the interpretation of the 4th criterion still remains open:

If someone has an approved H-1B (The I-797C is the only piece of paper that (s)he has before October 1), will (s)he be considered as if (s)he had been previously issued an H1-B visa? Will (s)he be allowed to start working with a new employer before October 1[provided the new employer has already submitted a petition for him/her]?

I am sure many of you are familiar with this kind of situation. It will be a great favor if you kindly throw some light on this.

Thanks and regards,

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