Cap-Exempt to Cap-Subject

[kxd23]

Hi!

My situation is very similar to the one described at http://www.murthy.com/news/n_h1bemp.html

I am working in H1B status for a university, a cap-exempt employer. The current H1B and I94 are valid till June 30, 2012. I obtained a new job offer from an employer, which is cap subject. The new employer has submitted a LCA requesting start date from April 1, 2012 and will file an H1B petition on April 1, 2012, requesting a start date of October 1, 2012. October 1 is the earliest possible start date, because when one moves from a cap-exempt university employment to a cap-subject employment, s/he must be counted against the H1B cap.

An experienced lawyer working for the new company assured me that I work for the new job between April 1 and October 1 2012. The murthy.com also explains that in the post I mentioned above.

But I still have a confusion because my current I94 will expire on June 30, 2012 and I believe that the new I94, if the H1B from the new employer is approved, will start from Oct 1, 2012.

Can I still work and stay legally in the US from July 1 to Sept 30, 2012?

Thank you

[nupuraggarwal]

Hello,

My situation is very similar to yours except that my I94 doesnt expire until June 2013.. so my question to you is that-

if my new cap-subject employer files a LCA for April1st- Oct 1st, will I be able to work until then? because I have read other posts which say- you can only work until you new h1-b is under process and you have to stop working once it is approved and wait until oct-1st?

Can you please suggest, i havent discussed my case with immigration attorney yet, but i will really appreciate if you can answer my question

[kxd23]

Hi nup123:

I think you can start working when the new cap subject employer submit the new H1B application on April 2, 2012. (April 1 is Sunday) if the LCA start date is April 1 and end date is whatever date the company wants (generally 3 years from the start date). You can continue working after the new application is approved. According to the memo from USCIS (which you can read here http://www.************), you don't have to stop working once it is approved.

Hope this helps.

[sharmava]

Hi,

COuld you please share this link again.. it is not accessible.

I am in the same situation and in dire need of help.

Thanks!

Hi nup123:

I think you can start working when the new cap subject employer submit the new H1B application on April 2, 2012. (April 1 is Sunday) if the LCA start date is April 1 and end date is whatever date the company wants (generally 3 years from the start date). You can continue working after the new application is approved. According to the memo from USCIS (which you can read here http://www.************), you don't have to stop working once it is approved.

Hope this helps.

[JoeF]

You could work for both employers. But, if the university job ends before Oct. 1, you would have to stop working for the new employer as well, and you could only start again on Oct. 1.

You also would have to leave the country in that case, once the universit job ends, otherwise, you would be out of status.

[sharmava]

You could work for both employers. But, if the university job ends before Oct. 1, you would have to stop working for the new employer as well, and you could only start again on Oct. 1.

You also would have to leave the country in that case, once the universit job ends, otherwise, you would be out of status.

are you talking about concurrent H1 or h1 transfer?

[exempttosubject]

You could work for both employers. But, if the university job ends before Oct. 1, you would have to stop working for the new employer as well, and you could only start again on Oct. 1.

You also would have to leave the country in that case, once the universit job ends, otherwise, you would be out of status.

I am confused. In http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf at the end of page 7 and top of the page 8, it says:

"If USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien

beneficiary if no cap numbers are available."

So it doesn't say that the cap-subject employment would be terminated if the cap-exempt employment is over. Rather, what I understood is that, as opposed to other cap-subject employments, a future h1b transfer will be subject to cap. Am I interpreting it wrong?

[kellyh]

So it doesn't say that the cap-subject employment would be terminated if the cap-exempt employment is over. Rather, what I understood is that, as opposed to other cap-subject employments, a future h1b transfer will be subject to cap. Am I interpreting it wrong?

I read it the same as you. I am in the same situation wishing to change from cap-exempt to cap-subject when no cap numbers are available. For now I can only do concurrent but am researching when and how I can change to work for the non-exempt company only. If our interpretation is right, we can resign from cap-exempt and continue to work for the cap-subject after the cap-subject petition is approved - we won't be counted towards cap, that's all. Could anyone verify this? From what I've seen on the internet, though, most lawyers were certain in a concurrent situation, once we stop employment with the cap-exempt, we need to stop working for the cap-subject.