Plan to use AC21 H1B portability provisions for cap-exempt H1B to cap H1B

[nonprofitistrap]

I work for a university X on a cap-exempt visa which is valid until October 2012, I got an offer from a private company Y.

Say,if my potential new employer Y files a new H1B petition on my behalf in July 2012, my start date can only be October 1st at the earliest since I need to be counted against the cap. But as per http://www.murthy.com/news/n_h1bemp.html, the H1B portability provisions in AC21 allow me to start working with the new employer before the start date of October 1st, 2012 provided a valid LCA exists(filed by new employer) for the period. However, if my H1B petiton is adjudicated upon before its start date (October 1st), I would have to stop working then for my new employer and restart after October 1st.

The following concern me:

1) My new H1B petition will be filed in July 2012 and my hope is that it does not get adjudicated upon until October 1st. Is this assumption reasonable or risky?

2) I will leave my old job and start working for my new employer immediately upon receipt of the new H1B petition which could be as early as July. My old employer might most probably terminate my H1B status immediately after I quit. So, I will be without an H1B and my status would rely on the the H1B portability provisions in AC21 alone between the months of July and September. Is this a dangerous practice and would it cause any complications when I apply for permanenet resident status?

3)Has anyone else done the same? If so, please advice.

[scientist79]

I am in the same situation. The issue of portability seems to be less clear with a cap- exempt H1B.

I have been advised that the first course of action may be to apply for a "new concurrent employment" status to safely bridge the time between start date and Oct1. This requires you having to still be regarded as an employee with your current employer. Then, a "new employment" petition may be applied for, effective Oct1.

You may be able to request unpaid vacation, or leave of absence with your current employer.

Have you had any success/insights since originally posting this?

[yellow_slip_13jan2010]

I'm in same situation right now. The nest thing is to NOT join until you get company B's visa approval and join on Oct 1. The gap in employment is not good ..

[thisptr]

I am exactly in the same situation right now, and it is extremely stressful. It would be great to at least hear about one success story regarding this matter and how it worked, but the forums are flooded with contradictory information on whether it is or not possible.

So... Anyone with a successful case?

[nupuraggarwal]

I am in the same situation. Did you guys have any success??

[scarboroughfair]

I am in the same situation now. But I am taking the risk. I work for cap-exempt employer and will be joining cap-subject employer next month with the receipt notice alone. However, I have told my cap-subject employer that I will be leaving the country and will join back on Oct1 if the visa decision is made before Oct 1. They agreed to it.

I will post if anything changes in between.

[nupuraggarwal]

My lawyer suggested against it and I am now working on concurrent H1b, where I am doing 2 jobs. I will join cap-subject employer full time in October until then I will be working part time with both jobs.

[sharmava]

Hey.. I am in this situation too... I am really confused and need some advice here. What if it gets approved in 2 months? Will you leave the country for 3 months? Also, some people have been posting that there is a revised USCIS memo that says you can keep working if it's approved.

I would really like to discuss this. YOu can also mail me on varunece470@gmail.com

I am in the same situation now. But I am taking the risk. I work for cap-exempt employer and will be joining cap-subject employer next month with the receipt notice alone. However, I have told my cap-subject employer that I will be leaving the country and will join back on Oct1 if the visa decision is made before Oct 1. They agreed to it.

I will post if anything changes in between.

[scarboroughfair]

My lawyer suggested against it and I am now working on concurrent H1b, where I am doing 2 jobs. I will join cap-subject employer full time in October until then I will be working part time with both jobs.

Interesting. My lawyer (from a firm which starts with M and ends in Y ;) ) did not suggest against it. Rather they warned me that I have to leave the country once the decision is made. Since my employer was OK with that, I did not care much. But from the understanding of the memo, discussions in other forums and a second opinion with another law firm, all suggest that AC21 permits you to work when the decision is pending. One should stop working once the decision is made until October 1st. Yeah, if the decision is reject, of course one goes out of status.

[scarboroughfair]

Hey.. I am in this situation too... I am really confused and need some advice here. What if it gets approved in 2 months? Will you leave the country for 3 months? Also, some people have been posting that there is a revised USCIS memo that says you can keep working if it's approved.

I would really like to discuss this. YOu can also mail me on varunece470@gmail.com

Regular H1-B takes about 3 months to approve. My h1-b will be applied by next week. Even if it takes 2.5 months, I have to leave the country for 1.5 months only. That is no biggie. I never heard of any revised USCIS memo that says one can keep working if approved. Could you provide me the link for that?

[scarboroughfair]

Update on my case: My H1B was approved on October 9th. So didn't have to leave the country.

[jairichi]

Interesting. My lawyer (from a firm which starts with M and ends in Y ;) ) did not suggest against it. Rather they warned me that I have to leave the country once the decision is made. Since my employer was OK with that, I did not care much. But from the understanding of the memo, discussions in other forums and a second opinion with another law firm, all suggest that AC21 permits you to work when the decision is pending. One should stop working once the decision is made until October 1st. Yeah, if the decision is reject, of course one goes out of status.

Hi,

First of all congratulations on being successful with H1B portability. As far as I have searched the internet (basically forums) you are the only one I have come across with a successful story. Mostly forums are filled with questions rather than situations where one explains how they went about getting the H1B portability.

I am in the same situation like you.

Employer - University

Designation - Postdoc

Current visa - J1 with waiver obtained from 2 year HRR.

DS2019 expiry date - January 31st 2013.

H1B visa (cap exempt) filed by university on 11th December 2012 with premium processing

Duration of H1B visa - Feb 1st 2013 to July 31st 2013

I have a prospective employer with an opening with an anticipated start date by March or April 2013. I had informed them about H1 portability act by which I could start working preferably from April (when cap becomes available) or in extreme situation from March (when cap is already filled for the fiscal year). Since you had mentioned you were successful in getting the portability done from a cap exempt to non-exempt and start working immediately with out concurrent employment I believe you could answer my questions

(1) Looks from your comment that your employer filed a H1B portability petition when the cap was open and available for the fiscal year. Am I right? Or your attorney had the opinion that it could also be done even when the cap is closed?

(2) When you applied was the current cap exempt H1B visa or change of status was expiring before October 1st 2012?

(3) Did your new employer file two LCA, one with an immediate start date and another with a start date of October 1st?

(4) My prospective employer mentioned that they will speak to their HR and then with their attorney to get their opinion about processing my application based on my situation. I know many attorneys would not have encountered situations like this and would have their own reservations. Was it the case with your employer's attorney? If yes, how did you convince them? Did you inform them about your independent attorney's opinion or you got your independent attorney talk to your prospective employer's attorney?

I believe I have seen the addendum from USCIS that mentions that even after approval of H1B portability one can still work for the new employer. If I find the link I will post it.

Thanks in advance for answering my questions.

Jai.