H1B cap-exempt employer to cap-subject employer

[bachimanchi]

Hello all the experts out there,

 

I am sure this topic has been beaten to death so many times in the past. But I still see personal opinions as opposed to the guidlines by uscis or any immigration attorney. I am trying to put together a scenario and hopefully, it will be clear after going through it and answering all the questions.

 

this person never counted against cap.

let's assume a person is working for cap-exempt employer 'A' and his H1B is valid from June-2013 to June-2016

this person got an offer from a cap-subject employer 'B' in October-2013, when cap numbers are not availble.

let's say start will be approximately 15-Nov-2013.

 

first case is H1B portability

 

when I look at AC21 portability, it never talks about cap-exempt or cap-subject H1B

 

http://www.uscis.gov/files/pressrelease/ChangesH-1BProgram_112100.pdf

 

Q10: Who is eligible to use the H1B "portability" provisions?
A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.

 

Q11: Are there any other limitations on the portability provisions?
A11: An alien must have been lawfully admitted into the United States. The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations.
Subsequent to such lawful admission, the alien must not have been employed without authorization.

 

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf

 

(11) H1-B portability provisions of INA 214(n), AC21 105

 

please let me know, if I am missing something here. It talks about H1B status (doesn't talk about cap-exempt or cap-subject)

 

on the other hand employer 'B' can file for H1B petition under concurrent employment. Let's say with a starting date of Nov-15th under premium processing and got it approved in 2 weeks (before Nov-15th). It's for the following period Nov'13-July'16

 

all USCIS needs for this is proof of employment at 'A' (pay stubs, letter from emplyer 'A')

 

once the petition gets approved and if the person decides to leave employer 'A' and would like to work for employer 'B' full time

 

I read the following from the same document

 

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf

 

(13) cap exemptions.....

 

At the time of filing a concurrent employment H1-B petition that is subjected to numerical limitation of 214(g)(1)(A)

 

if the H1-B alien beneficiary has not ceased to be employed in a cap-exempt position pursuant to INA 214(g)(A) and (B), then he or she will not be counted towards the cap

 

If the H-1B alien beneficiary has “ceased” to be employed in a cap-exempt position, then the alien will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary

 

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.

 

based on this, if a person quits employer 'A' after concurrent H1B is approved with employer 'B', it doesn't say anything about revoking the concurrent H1B petition with employer 'B'. It only talks about subsequent H1B petitions filed by employer 'B'.

 

is the H1b for the duration of Nov'13-July'16?

 

if employer 'B' applies for a cap-subject petition on 1st April'15, with a start date of 1st October'15 when visa numbers are available, it should be approved

 

I am confused and keep on reading so many things on this issue. It would be better to understand the issue based on the USCIS memo as opposed to "it's the law. you can't change it. you can only file on Apr 1st and wait until oct 1st. you are stuck etc......"

 

 

I am not sure, if the following makes any sense. It's from an immigration attorney............

 

http://www.shihabimmigrationfirm.com/lawyer-attorney-1978234.html

 

Thanks for reading this and sharing opinion,

 

 

Ramakrishna

 

 

[bachimanchi]

little more information on the topic I already started. It talks about what happens if you cease to be employed with cap-exempt employer after your concurrent H1B gets approved with cap-subject employer

 

http://www********************

 

As in most of the cases USCIS is silent on this issue, and one can interpret (inclunding USCIS) can interpret in different ways.

 

Ramakrishna