Staying exempt from H-1B CAP without having worked?

[swiss]

Hi everyone,

I was lucky to pass the H-1B lottery this April and recently successfully completed my embassy interview - I expect the visa-stamped passport back any day now. However, due to recent emails and communications with my employer, I am starting to doubt whether or not they will have any work for me when I show up in the office on October 1st.

My plan is to travel in 10 days prior to start-date and show up at office on Oct. 1st as previously agreed.

What happens if my employer decides that he will not engage or pay me? If I leave the country immediately after, as I know the rules would prescribe, can I re-apply for a new H-1B later without being subject to the cap?

I read in a few places that if I have been in status for at least one day, then typically I will not have to go through lottery again for the foreseeable future. Is this true? When does the status start? On the day of entry, or on the first day of employment?

If I leave as soon as I learn he will not pay me, could I re-enter on a visa-waiver to find a new job in the mean time?

Hope you can help!!!

[kabkaba]

You have rights as an H1B employee in the US. You can complain to DOL if they don't pay you. They are also required to pay for your ticket to home country, if they terminate you.

[shervin143]

What happens if my employer decides that he will not engage or pay me? If I leave the country immediately after, as I know the rules would prescribe, can I re-apply for a new H-1B later without being subject to the cap?
>>> Yes. You can do that post Oct 1st.

I read in a few places that if I have been in status for at least one day, then typically I will not have to go through lottery again for the foreseeable future. Is this true?
>>> You don't need to be in the states for that. Post Oct 1st, you can transfer your H1B to any other employer even if you are outside U.S.

When does the status start? On the day of entry, or on the first day of employment?
>>> If you enter U.S in H1B visa before Oct 1st, then your H1B status will start on Oct 1st. If you enter U.S after Oct 1st, then your H1B status will start on the day you entered U.S in H1B visa.

If I leave as soon as I learn he will not pay me, could I re-enter on a visa-waiver to find a new job in the mean time?
>>> You are not supposed to travel to U.S using one employer's petition to work for another employer or in search of a job. That is illegal. However, you can find an employer from outside U.S and they will have to file the H1B transfer. If the transfer gets approved, you can travel to U.S using the new employer's petition and the existing H1B visa (No need to go for stamping again) to work for that employer.

[swiss]

So how do I ensure not being subject to the cap again?

>>> If you enter U.S in H1B visa before Oct 1st, then your H1B status will start on Oct 1st. If you enter U.S after Oct 1st, then your H1B status will start on the day you entered U.S in H1B visa.

Thanks. So for the sake of argument. If I show up at the office on October 1st, and he says he wont work with me, I would still be "in status" at least until he files an application to revoke the petition I-129? Even if he never paid me a dime and I don't get any pay-stubs?

My main concern really is that I want to avoid having to go back through the Cap lottery. I heard that if I'm in status for just one day, I will not be subject to the cap if a new employers petitions for an I-129 within the next 3 years. Any comment on that?

[shervin143]

Thanks. So for the sake of argument. If I show up at the office on October 1st, and he says he wont work with me, I would still be "in status" at least until he files an application to revoke the petition I-129? Even if he never paid me a dime and I don't get any pay-stubs?
>>> You will be out of status on H1B. When you are in H1B, you should be working and getting paid to maintain the H1B status. If you enter on Oct 1st (With the employer's consent) and if you get terminated on Oct 1st, then the employer doesn't need to pay you anything, but he will need to pay for your return trip back home. You should not enter without their knowledge.

My main concern really is that I want to avoid having to go back through the Cap lottery. I heard that if I'm in status for just one day, I will not be subject to the cap if a new employers petitions for an I-129 within the next 3 years. Any comment on that?
>>> Post Oct 1st, whether you are in H1B status or not, you can transfer your H1B petition, even if you are outside U.S.