H1B Transfer before Oct 1st

[jairichi]

Understood. thanks for making it clear that "transfer" or in other words "Change of employer" in I-129 form part 2 (item no 2) is possible only if one is in H1 status.

i am in different condition now and will ask you specific question to ease off my pressure.

1. i am working with Employer A. i have approved H1B petition from Employer B and have also got stamp on passport using approved petition for Employer B. now employer A has initiated H1B cap-exempt petition (premium processing) with option selected as "New employement" in I-129 part 2 (item no 2) instead of "Change of employer" since i am not in the US right now. will this petition be considered as cap-exempt?

2. how important is the start date (Oct 1, 2015) in this case? is it important to wait till Oct 1 in this case?

If employer B's petition was filed as cap subject this April then any request to move to new employer based on a new cap exempt H1B petition before Oct 1st will be denied with the possibility of approved petition being revoked by USCIS.

Thanks in advance

[yogeshpatil]

If they deny cap exempt petition, it may still be acceptable but if they revoke the already approved petition then it would totally unfair.

Anyways, thanks for the response

[jairichi]

If they deny cap exempt petition, it may still be acceptable but if they revoke the already approved petition then it would totally unfair.

Anyways, thanks for the response

It is not unfair. Filing a cap exempt H1B petition before cap subject H1B petition becomes active is kind of sending a message to USCIS that the initial job for which the cap subject H1B petition was filed never existed.

[jairichi]

Understood. thanks for making it clear that "transfer" or in other words "Change of employer" in I-129 form part 2 (item no 2) is possible only if one is in H1 status.

 

i am in different condition now and will ask you specific question to ease off my pressure.

 

1. i am working with Employer A. i have approved H1B petition from Employer B and have also got stamp on passport using approved petition for Employer B. now employer A has initiated H1B cap-exempt petition (premium processing) with option selected as "New employement" in I-129 part 2 (item no 2) instead of "Change of employer" since i am not in the US right now. will this petition be considered as cap-exempt?

 

2. how important is the start date (Oct 1, 2015) in this case? is it important to wait till Oct 1 in this case?

 

Thanks in advance

1. Yes, it will be considered cap exempt only if filed after Oct 1st.

2. Refer 1.

[yogeshpatil]

Thank you very Jairichi for your quick and prompt replies. i also appologize for dragging it more. cited below is the May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:

 

If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap.

 

My first H1B is approved through consular processing so obviously first part related to COS in the text above won't be applicable i assume. As mentioned in the text above for consular processing cases that an individual won't be considered "counted" against cap if petition is revoked prior to the application of visa/admission.

 

in my case, i have already got visa stamped using approved petition and approved petition will be valid at the time of applying for another H1B cap exempt petition (from outside of the US). therefore i am little bit confused on why it can't be considered as cap-exempt if filed before oct 1 since for consular processing cases, applying for visa should be considered as using petition if interpretation of the text above is correct.

 

Please throw some more light on why waiting until after Oct 1 is mandatory for consular processing cases. once again i appologize for dragging it more but thought to bring more clarity.

[jairichi]

Thank you very Jairichi for your quick and prompt replies. i also appologize for dragging it more. cited below is the May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:

 

If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap.

 

My first H1B is approved through consular processing so obviously first part related to COS in the text above won't be applicable i assume. As mentioned in the text above for consular processing cases that an individual won't be considered "counted" against cap if petition is revoked prior to the application of visa/admission.

 

in my case, i have already got visa stamped using approved petition and approved petition will be valid at the time of applying for another H1B cap exempt petition (from outside of the US). therefore i am little bit confused on why it can't be considered as cap-exempt if filed before oct 1 since for consular processing cases, applying for visa should be considered as using petition if interpretation of the text above is correct.

 

Please throw some more light on why waiting until after Oct 1 is mandatory for consular processing cases. once again i appologize for dragging it more but thought to bring more clarity.

Nothing wrong in prolonging a healthy discussion unless everything becomes clear. Provide the full teleconference details. I am sure in both cases if petition is revoked before 1st Oct then one has to go under cap and no possibility of a H1B transfer before 1st Oct. A transfer to a new employer is possible only if you had or have maintained H1B status. It is not the case now for you or at least till Oct 1st when the actual H1B petition becomes effective. Even though you have a stamped H1B visa you can enter US not more than 10 days before H1B start date. And, even in that case your H1B status becomes effective only from 1st Oct. 

 

You can also talk to an attorney from Murthy law firm.

[JoeF]

Thank you very Jairichi for your quick and prompt replies. i also appologize for dragging it more. cited below is the May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:

 

If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap.

 

My first H1B is approved through consular processing so obviously first part related to COS in the text above won't be applicable i assume. As mentioned in the text above for consular processing cases that an individual won't be considered "counted" against cap if petition is revoked prior to the application of visa/admission.

 

in my case, i have already got visa stamped using approved petition and approved petition will be valid at the time of applying for another H1B cap exempt petition (from outside of the US). therefore i am little bit confused on why it can't be considered as cap-exempt if filed before oct 1 since for consular processing cases, applying for visa should be considered as using petition if interpretation of the text above is correct.

 

Please throw some more light on why waiting until after Oct 1 is mandatory for consular processing cases. once again i appologize for dragging it more but thought to bring more clarity.

 

You may have gotten the visa stamp, but note that that sentence says /visa/admission.

Admission means applying for entry into the US in the particular status. So, unless you actually enter with that H1 visa, you are not counted. And entering without the intent to work for the employer would be visa fraud, and could get you banned for life.

So, bottom line: you have to start working for the original employe.

[yogeshpatil]

ok.

 

it is starting to make sense that Oct 1 is important to be considered as counted against the cap or not and any attempt to shift this to a new employer will result in denial. my whole assumption of this petition being cap exempt was on following article as the scenario mentioned in there matches 100% with my scenario.

 

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

 

employer's attorney is not perfactly sure if it would be cap exempt petition but thinks there is a possibility. they somehow wish to take a chance and go ahead. i am bit worred now and wish could tell them to wait until Oct 1.

 

Thanks folks.

[jairichi]

ok.

 

it is starting to make sense that Oct 1 is important to be considered as counted against the cap or not and any attempt to shift this to a new employer will result in denial. my whole assumption of this petition being cap exempt was on following article as the scenario mentioned in there matches 100% with my scenario.

 

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

 

employer's attorney is not perfactly sure if it would be cap exempt petition but thinks there is a possibility. they somehow wish to take a chance and go ahead. i am bit worred now and wish could tell them to wait until Oct 1.

 

Thanks folks.

You can request new employer to delay a bit. It is September now.

[yogeshpatil]

As mentioned above, my employer's attorney wanted to take a shot at filing new cap exempt petition (before oct 1) based on approved H1B petition (April 2015) from another employer. well, they did it and i saw status today on USCIS website and it shows "Case was approved and my decision was emailed". 

 

i am yet to receive any e-mail from attorney but i assume they would wait until approval notice is received. threat still looms until Oct 1 if original employer revokes the petition, then USCIS at their discretion can revoke this petition too which i think i will have to live with.

 

i thought to close the loop since we have had a wonderful round of discussion through this forum. i can share more details if anyone is interested.

[jairichi]

Well, update in this forum what happens.

[gloubard]

I'm not sure why and who spread this notion of being employed with previous employer till Oct 1 to be able to switch.

I got the visa approved in May but my previous employer shut down the whole department. They promised to keep the application open though

3 months later I got a new job, was OK opt extension, the new lawyer filed the visa premium, last week and I got the approval yesterday (7 days).

Both were filed as NTO, I'm not sure if this was a lucky break but rather than advising people against this like throughout the thread I would suggest to give it a shot.

Atleast for people who won't have another shot next year, for others I do believe after Oct 1 is the safe and sensible bet

Both fortune 500 companies and top law firm and I'm from a to school, not sure if that played a role, but trying till the end is all we can do....