H1B Cap Exempt Question

[mg112306]

I had a H1B approval previously which was valid from May'10 to April,2013.Prior to that I worked on H1B since October'07 till April'10.
However, due to company wide lay-offs my H1B became invalid in November,2010 and I transferred my visa to F2 ( my husband has a F1 visa) and currently I hold a F2 visa.
If at present an employer wants to sponsor H1B for me, I assume I would be exempt from the H1B cap as my H1B was approved within the last 6 years and I have not left the US for more than a year after that. Would it be possible for me to start working with a new employer as soon as the petition is filed or do I have to wait till October,2011 or do I have to wait till the petition is approved?

I would appreciate any help with this situation. Thanks.

[shervin143]

If the H1B filed using the old CAP from your previous h1B approval notice, then you need to wait until the petition gets approved (assuming the employer requests an immediate start date). If the H1B is filed on a brand new CAP with a COS from F2, then you will need to wait until Oct 1st. In theory, your status should change from F2 to H1B for you to work.

[mg112306]

Shervin,

Thanks for your reply.

I am not sure how the procedure to file the new H1B using the old CAP is different from the H1B being filed on a brand new CAP. If you could please explain this, it would be helpful. Technically, shouldnt the employer be able to file using the old CAP since I still have almost 3 years of the H1B time limit(6 years) left? How do I make sure that H1B is filed using the old CAP?

If my H1B is approved using the old CAP, do I still need to file for COS from F2 to H1B?

Thanks for your help.

[shervin143]

I am not sure how the procedure to file the new H1B using the old CAP is different from the H1B being filed on a brand new CAP. If you could please explain this, it would be helpful. Technically, shouldnt the employer be able to file using the old CAP since I still have almost 3 years of the H1B time limit(6 years) left? How do I make sure that H1B is filed using the old CAP?
>>> While filing the form I-129, then employer will enter the OLD CAP number and attach a copy of the previous H1B approval notice and request an immediate start date. Check with your employer to see if they filed the petition on the old CAP or the new CAP for fiscial year 2012.

If my H1B is approved using the old CAP, do I still need to file for COS from F2 to H1B?
>>> You need to check this with the employee. While filing the H1B petition (form I-129) the employer has the option to file it as a change of status or consular process. If it is a COS, then you should start working immediately upon approval.