H4 to H1 COS, Multiple petetions

[user1152]

Hi,

My wife is currently in US and on H4 status. She has a previously approved H1B through Company A. Company A has offices back in India too. She is currently employed with Company A (India) and on leave without pay.

She recently got a confirmed assignment through Company A in US. As a result they will be filing for her H4 to H1 Change of Status soon.

She also got a better offer from Company B here in US. She plans to have a cap exempt H1 (along with COS from H4 to H1) filed through Company B too.

Now in order to join Company B she needs to quit company A. If she does it now then she will have to serve a 3 month notice in India as she is still an Indian employee with Company A (buying out the notice period is not an option as per the Company A's India HR). Company B is not be willing to wait for 3 months. And she doesnt want to loose this oppurtunity with Comapny B.

So in order to ease the process we are thinking to let company A complete the process of H4 to H1 COS (so that she becomes Company A, US Entity employee) and then put down her papers (with a day notice or may be no notice at all).

So need guidance on this process through following questions:

1. Can she have COS (from H4 to H1) filed, from both Company A and B simultaneously ?

2. If Company B COS gets approved first then I guess she will be expected to join Company B immidieately. If yes, then what happens when COS for Company A gets approved ?

3. What will happen in case COS from Company B gets approved, and Company A files for COS after the approval from Company B comes in ? Will the COS from Company A get denied ?

She plans to join Company B and start work as soon as her H4 to H1 COS is approved.
She plans to put down her papers (without serving any notice period in Company A, US Entity) after her H4 to H1 COS is approved with Comapny A. This is going to happen after she joins Company B. So this would rule out any dual employment issue too. Right ?

[shervin143]

1. Can she have COS (from H4 to H1) filed, from both Company A and B simultaneously ?
>>> Possible. She will have to start working for whichever company's H1B gets approved first as a COS. Once she is in H1B status, she should be working and getting paid to maintain the H1B status or she will go out of status on H1B.

2. If Company B COS gets approved first then I guess she will be expected to join Company B immidieately.
>>> That is correct.

If yes, then what happens when COS for Company A gets approved ?
>>> She will have the option to continue to work for Company B or join Company A at that time.

3. What will happen in case COS from Company B gets approved, and Company A files for COS after the approval from Company B comes in ? Will the COS from Company A get denied ?
>>> Most likely there should be an RFE since she is no longer on H4 status at that time. Post Company B H1B approval, Company A will need to file a transfer, not a COS.

She plans to join Company B and start work as soon as her H4 to H1 COS is approved.
She plans to put down her papers (without serving any notice period in Company A, US Entity) after her H4 to H1 COS is approved with Comapny A. This is going to happen after she joins Company B. So this would rule out any dual employment issue too. Right?
>>> There is no dual employment as long as she doesn't work for both the employers at the same time. Both the employer's petitions getting approved at the same time doesn't mean that she is working for both the employers. She gets to pick one when that happens.