Academic to Industrial H1B transfer (April-October problem)

[xkcd18]

Hi,

I am currently on an academic H1B, doing a postdoc in an university.

My academic H1B started on Jan 1 this year.

I am looking for jobs in the industry.

 

I am aware that I am going to fall under the H1B cap, since I am converting from 

cap-exempt H1B to one with cap.

 

However, it is not clear to me, if I have provision to work from April to October?

If so, how?

Many companies I am talking to are not agreeing with a start date of October 1.

Is there a way for me to work between April 1 and October 1?

 

It will be very helpful if anyone can answer this. I am having a lot of trouble doing a job search because of this.

I am sure there are others like me, in the same boat.

I am wondering what is the way out here, if there is one that is.

[jairichi]

Hi,

I am currently on an academic H1B, doing a postdoc in an university.

My academic H1B started on Jan 1 this year.

I am looking for jobs in the industry.

 

I am aware that I am going to fall under the H1B cap, since I am converting from 

cap-exempt H1B to one with cap.

 

However, it is not clear to me, if I have provision to work from April to October?

If so, how?

Many companies I am talking to are not agreeing with a start date of October 1.

Is there a way for me to work between April 1 and October 1?

 

It will be very helpful if anyone can answer this. I am having a lot of trouble doing a job search because of this.

I am sure there are others like me, in the same boat.

I am wondering what is the way out here, if there is one that is.

Using AC21 portability if your cap subject H1B petition is picked in lottery you can start working for cap subject employer till your cap subject petition gets approved. Once approved you need to stop working for employer and start working only from 1st Oct.

[xkcd18]

Thanks a lot for your reply.

That shows a ray of hope.

I read about the AC21 portability provision. The only catch is, as you mentioned, I need to stop working and leave the country as soon

as the petition is approved. That puts me in a really spotty situation. This has also been mentioned in previous discussions in the forum in similar discussions.

Some lawyers seem to believe that the USCIS position is not that the legal status will end once the petition is approved.

For example:

[url="http://www.**************

"No, approval does not cause employment authorization to cease. The portability provision provides that employment authorization with the new employer is covered until the new H-1B petition is either denied or adjudicated. Some have taken the position that if the petition were to be approved, but for a future start date because no H-1B visa numbers were available, then employment authorization under portability would cease until the new H-1B status start date. However, the USCIS has agreed with immigration attorneys that this position does not seem to make sense because those with pending petitions that ultimately get denied would be in a better position than those who filed under premium processing and got a rapid approval. Therefore, portability lasts until the end of the validity of the underlying labor condition application."

Is this just his personal reading of the law or is it safe to assume that this is correct?

I don't know what the lawyer means when he says "USCIS has agreed with immigration attorneys?"

In the end, I guess, is this a risk worth taking?

[jairichi]

Thanks a lot for your reply.

That shows a ray of hope.

I read about the AC21 portability provision. The only catch is, as you mentioned, I need to stop working and leave the country as soon

as the petition is approved. That puts me in a really spotty situation. This has also been mentioned in previous discussions in the forum in similar discussions.

Some lawyers seem to believe that the USCIS position is not that the legal status will end once the petition is approved.

For example:

[url="http://www.**************

"No, approval does not cause employment authorization to cease. The portability provision provides that employment authorization with the new employer is covered until the new H-1B petition is either denied or adjudicated. Some have taken the position that if the petition were to be approved, but for a future start date because no H-1B visa numbers were available, then employment authorization under portability would cease until the new H-1B status start date. However, the USCIS has agreed with immigration attorneys that this position does not seem to make sense because those with pending petitions that ultimately get denied would be in a better position than those who filed under premium processing and got a rapid approval. Therefore, portability lasts until the end of the validity of the underlying labor condition application."

Is this just his personal reading of the law or is it safe to assume that this is correct?

I don't know what the lawyer means when he says "USCIS has agreed with immigration attorneys?"

In the end, I guess, is this a risk worth taking?

I agree that a clear information is not available regarding what happens when cap subject H1B petition gets approved. Different lawyers have different opinion. But, it is worth taking the risk as H1B petition filed in regular processing will take time for approval compared to premium processing. Say for example if cap subject H1B petition gets approved in Sept you would need to spend 1 month outside US before you can start working from 1st Oct. For an employer waiting for a month is less than waiting for 6 months (April 1st to Oct 1st). If you can convince your employer it is doable.

Also, you have the option of concurrent H1B employment where you work for your current employer and cap-subject H1B employer till your cap subject H1B petition gets approved. On approval you can keep working with current cap exempt H1B employer till 1st Oct, when you can make the switch. In this case both employers must agree which is kind of tough.