Employer forgot to revoke H1 Application; planning to initiate an H1 transfer

[mariska]

I worked for company A previously and my H1 was accepted under company A. Then, I moved to company B and told company A to withdraw my H1 application (I'm still on OPT). Right now, I am in the process of applying for OPT STEM extension since my OPT ends in late October 2015. However, I just noticed that my H1 case status is still "accepted", and my school adviser also confirmed that my SEVIS status is "H1 approved" and will be active on October 1st.

My question is: while my OPT STEM application is still pending, would it be possible to apply for an H1 transfer on October 1st to company B?

[raghvi]

I worked for company A previously and my H1 was accepted under company A. Then, I moved to company B and told company A to withdraw my H1 application (I'm still on OPT). Right now, I am in the process of applying for OPT STEM extension since my OPT ends in late October 2015. However, I just noticed that my H1 case status is still "accepted", and my school adviser also confirmed that my SEVIS status is "H1 approved" and will be active on October 1st.

My question is: while my OPT STEM application is still pending, would it be possible to apply for an H1 transfer on October 1st to company B?

Seems your H1 was filed as COS, in that case come Oct 1st you should work with A, your original H1 employer. There have been success in past in "transferring" the petition before Oct 1st, which in your case would be to B. There also have been cases where USCIS has raised an RFE stating that one is not considered cap exempt till Oct 1st. So talk to an attorney and decide your option.

One sure way to avoid joining A on Oct 1st and continue to be with B and yet have an option to transfer the petition to B at a later point in time; is to be leave US prior to Oct 1st and return on your F1 visa after 1st Oct 2015, this will nullify the activation of H1 on 01-Oct.

This is my opinion not legal advice.