H1 picked in lottery, clarification on COS

[prasaddev2010]

Hi,

I am on L2 visa with an EAD and presently employed by a consultancy A. My consultancy A has applied for H1 which got picked in lottery. Now that COS to H1 cannot be done until, Oct 1st 2015, I need to use my L2/EAD to continue to work.

Question: If I decide to go to consultancy B for a new job using my L2/EAD, come October 1st 2015,
would consultancy B be able to file COS for me on the H1 filled by consultancy A?
OR
would I need to be employed by consultancy A in order to be able to file COS to H1, if not then will lose the H1??

[raghvi]

Hi,

I am on L2 visa with an EAD and presently employed by a consultancy A. My consultancy A has applied for H1 which got picked in lottery. Now that COS to H1 cannot be done until, Oct 1st 2015, I need to use my L2/EAD to continue to work.

Question: If I decide to go to consultancy B for a new job using my L2/EAD, come October 1st 2015,
would consultancy B be able to file COS for me on the H1 filled by consultancy A?
OR
would I need to be employed by consultancy A in order to be able to file COS to H1, if not then will lose the H1??

Was the H1 applied as COS ?

If H1 was applied as COS, and approved, and H1 I797 came with a new I-94, then you would automatically move from L2 to H1 of A on the COS date and must work and get paid by the H1 employer A. If you want B to file Cap exempt H1 for you, I would advise they file it and get it approved (by filing in premium) before A's H1 start date .

This is my opinion not legal advice.

[prasaddev2010]

H1 picked in lottery, clarification on COS

Was the H1 applied as COS ?

If H1 was applied as COS, and approved, and H1 I797 came with a new I-94, then you would automatically move from L2 to H1 of A on the COS date and must work and get paid by the H1 employer A. If you want B to file Cap exempt H1 for you, I would advise they file it and get it approved (by filing in premium) before A's H1 start date .

This is my opinion not legal advice.

Thanks for the prompt response. How do I find out if the H1 was applied as COS? Would only the employer can tell that or is there a way we can find it without calling the employer?

[raghvi]

Thanks for the prompt response. How do I find out if the H1 was applied as COS? Would only the employer can tell that or is there a way we can find it without calling the employer?

Only the employer and the attorney would be able to confirm that. It is most likely they would have done a COS, but better confirm from them.

This is my opinion not legal advice.

[prasaddev2010]

Only the employer and the attorney would be able to confirm that. It is most likely they would have done a COS, but better confirm from them.

This is my opinion not legal advice.

I appreciate all your responses.

Just checked with the employer A, they mentioned:
"It was filed as a new H1B so your status will be changed once your H1B is approved."

So my original question stands:

If I decide to go with Employer B now using L2/EAD, would they be able to file COS from L2 to H1, given that I never worked for employer A on H1?

[raghvi]

I appreciate all your responses.

Just checked with the employer A, they mentioned:
"It was filed as a new H1B so your status will be changed once your H1B is approved."

So my original question stands:

If I decide to go with Employer B now using L2/EAD, would they be able to file COS from L2 to H1, given that I never worked for employer A on H1?

Earlier one could , but off late I am reading that USCIS has started issuing RFE for such cases as according to them you are not cap counted till H1 from A has begun, in which case, you should first work for A for few payroll period while on H1 and then initiate a transfer. Below is what the RFE looked like:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC **** **** ** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

This is my opinion not legal advice.

[meeunda]

Earlier one could , but off late I am reading that USCIS has started issuing RFE for such cases as according to them you are not cap counted till H1 from A has begun, in which case, you should first work for A for few payroll period while on H1 and then initiate a transfer. Below is what the RFE looked like:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC **** **** ** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

This is my opinion not legal advice.

Hi Raghvi,
In that case, once COS is approved, candidate may go to his home country and from there can he find another employer if he is not really interested to take the offer from the current employer who actually sponsored this COS H1? And the new employer can file fresh cap exempted petition using the COS approved petition? and once that is approved, can we get H1 stamping done for the new employer and join them?