H1B cap-exempt to cap-subject transfer

[palaparthi04]

Hi All,

I am working full time for a non-profit organization and have a cap-exempt H1B visa. I recently got an offer from a commercial company and since the annual H1B quota for FY2013 is already over, I am having trouble moving to the commercial company.

Can anyone suggest me a possible way to start working with the commercial company right away other than the concurrent H1B visa as they are not interested in pursuing it?

I would appreciate if someone can help me on this.

Regards,

Anil.

[JoeF]

The new employer can file an H1 in April 2013 for a start date of Oct. 1, 2013.

[palaparthi04]

Hi,

Thanks for the reply.

I need a solution that will help me to start working with them right away other than concurrent H1B visa.

I don't think they will wait until next october without filling the position with some one else.

Regards,

Anil.

[JoeF]

Hi,

Thanks for the reply.

I need a solution that will help me to start working with them right away other than concurrent H1B visa.

Not possible.

What part of my answer didn't you understand?

They can file an H1 application from April 1, 2013 on in the 2014 quota, for a start date of Oct. 1, 2013. Period. If they don't want that, find another employer.

[vikramrathode.r]

..Did you ever had a cap subject H-1b before..if you do then your employer can file for H-1B and you can start working with new employer as soon as you receive your receipt notice...

[JoeF]

..Did you ever had a cap subject H-1b before

Not quite "ever"... If a person has been counted for the quota in the last 6 years, the person is not counted again.

If a person has not been counted in the quota, e.g., by getting the initial H1 from a cap-exempt employer, the person can only apply for achange to an employer falling under the quota when the quota is open. In this case, that would mean applying on or after April 1, 2013 for a start date no earlier than Oct. 1, 2013.

It isn't rocket science...

[palaparthi04]

Hi All,

I totally understand the problem now.

As said here, the transfer from non-profit to commercial company is not smooth if you are under cap-exempt H1B visa and not counted under the cap within the past 6 years.

It is not easy to get a job in the current market. I got one but had to lose because of the things that are not under my control.

Now, I am not sure how I get out of this.

I am not too optimistic about some employer who will hire me around April, file my H1B under regular quota (which has to be open when I get an offer and you never know when the quota gets closed and also when one gets an offer) and wait until October which is 6 months to start the work.

Can't I do anything else other than rue my luck. Can't I make this transition be more smoother than what it is now.

Is there anyone that matters, whom I can contact to bring this issue up and find a better solution to this problem.

If anyone knows whom I need to contact to find a solution to this problem, please let me know. It not only helps me, but it might also help someone else who is in a similar situation as I am in now.

Thanks

Anil Palaparthi.

[JoeF]

Can't I do anything else other than rue my luck. Can't I make this transition be more smoother than what it is now.

A concurrent H1 would be the only option to start working part-time for the non-cap-exempt employer. But you dismissed that already.

Is there anyone that matters, whom I can contact to bring this issue up and find a better solution to this problem.

You still don't get it.

There is no "better solution". It is the law! It is the law! It is the law! Do I need to repeat it once more? It is the law!

This country is based on the rule of the law.

To repeat it once more: It is the law!

Get it now? Or do I need to repeat it once more? It is the law!

[palaparthi04]

Hi,

I totally understand the law behind this visa. I understand that there is no better solution under the current law.

But, that law can be changed or amended.

I think I am not clear with my question earlier.

My question before is whom should I contact to make that law amended such that there would be smooth transition?

Regards,

Anil Palaparthi.

[Henry82]

Well, Hire a lawyer in Murthy firm. They may be able to give you suggestions/solutions/openion.

Good luck with this.

Also keep us posted if any updates.

[JoeF]

Hi,

I totally understand the law behind this visa. I understand that there is no better solution under the current law.

But, that law can be changed or amended.

That is unlikely to happen in the next couple of years.

I think I am not clear with my question earlier.

My question before is whom should I contact to make that law amended such that there would be smooth transition?

The US Congress is the law-making body in this country.

Your employer may want to contact the Congressperson representing their location. As a non-US-citizen, you don't have any input there.

And again, this is something that is not likely to change anytime soon.

[t75]

No change in the law will help solve your problem even if it were to be introduced tomorrow. You knew the risks and benefits of cap-exempt. You have to live with the consequences of your choice.

[kewl_guy]

I understand the cap-exempt to cap subject is a problem, but honestly does USCIS do such minute scrutiny? I doubt it. I am guessing they will look if the person is previously on H1, provide H1 transfer and be done with it. Palaparti, did you apply for your transfer?

[JoeF]

I understand the cap-exempt to cap subject is a problem, but honestly does USCIS do such minute scrutiny?

Yes.

I doubt it. I am guessing they will look if the person is previously on H1, provide H1 transfer and be done with it.

They know that the current H1 was cap-exempt. It's all in the file.

Don't think they are stupid.

[palaparthi04]

@Kewl guy: I never thought we can do such things. But, that's an interesting solution.

I am applying for other companies right now and see if there is anyone out there who can actually pursue concurrent H1B visa.

I think that's the only thing I can do right now.

Thanks again guys for your time on this post.

I will post you if I find any exciting stuff on this issue.

-Anil.

[palaparthi04]

Hi All,

I got another interesting issue with the concurrent H1B visa.

It is intellectual property (IP) issue as I will be working at two places simultaneously.

I think there are many people who work for multiple companies at the same time.

It would be of great help if someone can tell me how those people address this IP conflict.

Regards,

Anil.

[JoeF]

Well, a lot of employment contracts prohibit side jobs unless the company explicitly allows them.

One of the reasons is that they don't want you working for a competitor on the side.

Some employment contracts also have language in them that all your inventions, programs, etc. belong to the employer, even if done during your spare time. I do know that in California, that's not allowed anymore, a law prohibits that. No idea about other states.

If such a clause is in your employment contract (and you are outside of CA), you probably have no choice but to only work in some unrelated field (it will be hard to get a concurrent H1 for that, though, since you need to have a degree in the appropriate field.)

Of course, you could also negotiate with the employer to take such a clause out of the contract.

That's what I did way back when I was on H1 and also enrolled in a graduate program at a university. Research done in the course of the graduate program belongs to the university. My employer wanted to change the employment contract, having a clause in it that all IP, even if done outside of the employment, belongs to the company. I told him that I can't sign that, due to the IP rules of the university. The employer took the clause out...

[nnadipa]

Hi Anil,

 

Did you get your issue resolved. I am also currently in the same situation.

 

Thanks!

[enofreelancer]

USCIS has issued an opinion letter on May 23, 2007 that answers a common question: Whether a H-1B worker who is employed by a cap exempt employer can switch from cap exempt employment to cap subject employment after filing of the cap subject H-1B petition in a period in which no H-1B visa numbers are available. 

The answer to that question is YES.  Consider this example: A scientist is working for a cap-exempt university in H-1B status valid through June 2008.  A private company (cap subject employer) files a cap subject H-1B petition for him on April 02, 2007 requesting a start date of October 01, 2007.  There is a underlying labor condition application valid from April 02, 2007 to April 02, 2010.  Under H-1B portability provisions of AC21, the scientist would be able to start legally working for the cap subject employer upon filing of the cap subject H-1B petition.  In other words, the scientist would be in employment-authorized status from April to October, until the start date of the H-1B petition. 

It is important to note that the H-1B portability provisions do not confer H-1B status on the H-1B worker, but employment authorization.  It is possible that new H-1B petition may be denied.  For example, it may be denied because the cap subject H-1B petition did not receive a cap number due to the cap being reached.  In that event, the H-1B worker's employment authorization would cease. This is a risk H-1B workers must consider before changing jobs from cap exempt employment to cap subject employment.