H1 transfer before counselor processing

[explorer76]

My Wife's H1B got approved in november for consular processing. She is currently on OPT and was planning to go to Canada soon to have the new H1 stamped. However it turns out that she might be switching to a new employer. Is it possible for her to get the H1B transfer before getting counselor processing done for her current H1B? Also she is currently on maternity leave and was originally scheduled to resume her job with the current employer in April. Would this have any negative impact on her H1B transfer application - obviously she would not have any pay stubs for maternity leave period though she has pay stubs from the period before the leave started.

[kabkaba]

Yes, another employer can file a cap-exempt petition for her. But, there are some complications involved since she is only allowed 90 days of unemployment on OPT. When does her OPT expire? Is the the original 12 month period or extension?

[explorer76]

Yes, another employer can file a cap-exempt petition for her. But, there are some complications involved since she is only allowed 90 days of unemployment on OPT. When does her OPT expire? Is the the original 12 month period or extension?

Thanks for your response! She is on her OPT extension which expires in second week of March. Our original plan was for her to leave the country before that and get back with the H1 stamped. However if she goes for the H1 transfer with a start date of mid-April then there is also this question that what would be her status from the time her OPT extension expires to the time her new H1 start date begins. We don't know if the new H1 would still be approved with consular processing or will she get the change of status this time (the reason she got consular processing the first time was that she traveled out of the country while her H1 application was in process, so it was considered as an abandonment of the COS request)

Based on my previous inquiries on the forums and from her company lawyer, we have this impression that maternity leave does not count as unemployment. Is that not true? She is still employed by the company and unless she makes the switch she is scheduled to resume work once the maternity leave ends.

Thanks again for your help!

[kabkaba]

Genuine maternity leave does not count as unemployment or out of status period. But, if she is terminated from employment that will count as unemployment. Maternity leave will only apply if the employee-employer relationship still exists.
So whether change of status is approved or not depends on what evidence you provide of that employee-employer relationship.

Also, she has a 60 day period after OPT expiry in which she is in legal status but not allowed to work. So, if the H1 start date falls within this period change of status can be approved.

[explorer76]

Genuine maternity leave does not count as unemployment or out of status period. But, if she is terminated from employment that will count as unemployment. Maternity leave will only apply if the employee-employer relationship still exists.
So whether change of status is approved or not depends on what evidence you provide of that employee-employer relationship.

Also, she has a 60 day period after OPT expiry in which she is in legal status but not allowed to work. So, if the H1 start date falls within this period change of status can be approved.

Thanks again for the response. Her maternity leave is genuine - she still gets all of the company emails, she still has all the company user accounts and server access, etc. In fact her employer wants to have her back on work as soon as possible. However it is a startup so there is a lot of work which might be hard to manage with a little baby. This is why she is looking to move to another company which has a comparatively lower work load.

What type of evidence is normally required / sufficient to establish that the employee-employer relationship exists?