H1b cap exempt to cap subject employment

[raghvi]

Hi,
My question is regarding H1b transfer from cap exempt to cap subject employment. I am currently on my first 3 year H1b rotation through a cap - exempt employer (company A) that expires in Feb 2016. I have never been counted against the H1b cap before. I have a cap subject employer (company B) willing to sponsor an H1b for me and I was able to convince them to wait and file in April 2015 (Hopefully by then I would have obtained my I140 approval and can take my PD to B). My questions:

1. I know that I can start working for B as soon as a new cap subject petition is filed by B. I have the flexibility to join B whenever I want to so would it be wiser to wait for the petition to get approved first and then join? I ask this because I have heard that if I join B on filing and resign from A, and my petition is rejected for some reason then I am out of status and would have to leave the country.

2. Lets say I decide to wait for the result of petition to arrive and lets say the result is a denial. What happens to my current cap exempt H1b (valid till Feb 2016)? Is it still valid so I can continue to work for A? During this process would A have any idea of my activities - i.e., will USCIS inform A that a cap subject H1b petition has been filed on my behalf? If not, are there other ways A can find out that a new H1b has been filed on my behalf? If so, how can I avoid A from finding out? I don't want my current employer to find out yet - not until I have an approved petition in hand.

3. Lets consider the flip side. Lets say the new cap subject h1b is approved. I notify my manager of my intent to leave. But things take an interesting turn - I am offered a big hike in salary and position. A's offer is now much better than B's. Can I decline B's offer and continue to work for A? What happens to the approved cap subject H1b that B filed? Now that I have been counted against the cap but did not actually join B, will I be subjected to cap again in the future when transferring to a new cap subject employer?

3. Lets say the new H1b is approved and things don't take an interesting turn when I announce my intentions to my current employer. Company A has a mandatory 2 month notice period which B is willing to wait for. But I have accrued almost 2 months of paid vacation with A. Can I leave the country for these 2 months and reenter without hassle? If not, can I take the 2 month paid vacation and start working for B while still technically employed by A, come back to A at the end of my "vacation", resign and move to B for good?

Lets assume that B files under premium processing so please assume the earliest possible dates of approval etc and again – my current cap exempt H1b is valid till Feb 2016.

Thanks for your help and apologies in advance for the long post.

1. Your assumption is not true. As B is cap subject employer, you can start work with them only after 01-Oct-2015, provided your H1 with B is approved.You are right in assuming that if you join B and if H1 is rejected you end up being out of status.
2.Yes it would remain valid and you can continue working with A.A would not know unless you tell them.
3. In that case, in order to avoid joining B, before COS to B date, you would have to leave US, and re enter using A's petition and a valid H1 visa in your passport. As you would have been cap counted, you would be cap exempt for 6 Years.
4. As said, the H1 with B can only start from 01-Oct-2014 or later, so if there is a 2 Month notice period, you need to resign around 01-Aug-2015. I dont know if A will waive notice period in lieu of vacation accrued, thats an internal policy of A, not immigration related.

All in all, remember, the earliest you can start working with B, if H1 approved, is 01-Oct-2015, so plan around that.

This is my opinion not legal advice.

[JulyMoon]

Hi,
My question is regarding H1b transfer from cap exempt to cap subject employment. I am currently on my first 3 year H1b rotation through a cap - exempt employer (company A) that expires in Feb 2016. I have never been counted against the H1b cap before. I have a cap subject employer (company B) willing to sponsor an H1b for me and I was able to convince them to wait and file in April 2015 (Hopefully by then I would have obtained my I140 approval and can take my PD to B). My questions:

1. I know that I can start working for B as soon as a new cap subject petition is filed by B. I have the flexibility to join B whenever I want to so would it be wiser to wait for the petition to get approved first and then join? I ask this because I have heard that if I join B on filing and resign from A, and my petition is rejected for some reason then I am out of status and would have to leave the country.

2. Lets say I decide to wait for the result of petition to arrive and lets say the result is a denial. What happens to my current cap exempt H1b (valid till Feb 2016)? Is it still valid so I can continue to work for A? During this process would A have any idea of my activities - i.e., will USCIS inform A that a cap subject H1b petition has been filed on my behalf? If not, are there other ways A can find out that a new H1b has been filed on my behalf? If so, how can I avoid A from finding out? I don't want my current employer to find out yet - not until I have an approved petition in hand.

3. Lets consider the flip side. Lets say the new cap subject h1b is approved. I notify my manager of my intent to leave. But things take an interesting turn - I am offered a big hike in salary and position. A's offer is now much better than B's. Can I decline B's offer and continue to work for A? What happens to the approved cap subject H1b that B filed? Now that I have been counted against the cap but did not actually join B, will I be subjected to cap again in the future when transferring to a new cap subject employer?

3. Lets say the new H1b is approved and things don't take an interesting turn when I announce my intentions to my current employer. Company A has a mandatory 2 month notice period which B is willing to wait for. But I have accrued almost 2 months of paid vacation with A. Can I leave the country for these 2 months and reenter without hassle? If not, can I take the 2 month paid vacation and start working for B while still technically employed by A, come back to A at the end of my "vacation", resign and move to B for good?

Lets assume that B files under premium processing so please assume the earliest possible dates of approval etc and again – my current cap exempt H1b is valid till Feb 2016.

Thanks for your help and apologies in advance for the long post.