Resigned while on STEM OPT, H1B approved


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I am on STEM OPT until Dec 2013. I was employed at company A, which applied for my H1B for 2013. I got the approval notice with effective date of Oct 1st 2013. However, I resigned from the company a few weeks before the approval, and got the approval while completing my transition period, which means I got my approval before my last day of employment.


I was in the process of returning to my home country but got an offer from company B, who want to hire me immediately. They are concerned with transferring my H1B, stating that the transfer cannot happen until I have at least 1-2 pay stubs from my previous company under H1B. I obviously don't have the pay stubs since I am no longer employed there, and my H1B does not start yet. I have not exceeded my 90 days of unemployment under OPT.


My questions are:

1. Can company B apply for my H1B and start me off using my STEM OPT without the pay stubs while H1B application is pending?

2. If so, will it be a new petition or an H1B transfer?

3. Will I be exempted from the H1B cap?


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You cannot "transfer" until you are in status. All that means is that you can begin working with a receipt rather than waiting for the approval notice.  You will not be on OPT after Oct 1; you can be on OPT before that date. They can file a new petition not under the cap with your current approval.


B's attorney can properly make the application.

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