H4 to H1B COS

[praju]

My spouse is on H4 currently but with approved H1B petition. However, COS from H4 to H1 is not done as she was out of US while H1B petition was processed and entered US as H4. Now with H1B petition approved, can she join a new different employer as a full time employee without working for current employer ?

 

If yes, what all would new employer process along with H1B transfer & LCA ?

 

Thanks

Raju

[rohang]

new employer will file for H1b (cap exempt), once approved with COS, she can work for new employer.

 

If approved with CP (chances are high for this), she will have to go out and come back after stamping.

[jairichi]

If the cap subject H1B petition was revoked by employer (which should have been done by employer according to law) then your spouse is not eligible for a cap exempt H1B petition.

 

In a 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.

[pontevecchio]

You should check out the new situation regarding the need for having been in H1 status with the original filer before being able to transfer.

[JoeF]

The original H1 petition would have been revoked because she did not start working for the employer, and the employer is required by law to inform USCIS about that.

That means that she has not been counted for the H1 quota, and a new employer would have to file a new H1 petition in April for a start date of Oct. 2016.