Not joining the company after H-1B approval

[avppgv]

Hi,

I am working with company A in the US on an L-1 visa. This company is applying an H-1B visa for me on 1st April through premium processing, so I expect the visa to be approved withing 15-20 days (unless something goes wrong). I understand that the effective date for this visa would be 1st October 2013. However, let's say, I resign from this company before 1st October and go back to India. And, let's say, in January of next year (2014), a company B offers me a role in the US. Can I then simply have my H-1B visa transfer from company A to company B or will I be subject to the H-1B cap once again?

[mickey_mouse]

Hi,

I am working with company A in the US on an L-1 visa. This company is applying an H-1B visa for me on 1st April through premium processing, so I expect the visa to be approved withing 15-20 days (unless something goes wrong). I understand that the effective date for this visa would be 1st October 2013. However, let's say, I resign from this company before 1st October and go back to India. And, let's say, in January of next year (2014), a company B offers me a role in the US. Can I then simply have my H-1B visa transfer from company A to company B or will I be subject to the H-1B cap once again?

You can certainly do that. However, company A may not provide you with the petition # - and hence, without it, you cannot apply for cap-exempt. And as soon as you resign Company A, I'm sure they will cancel your H1B. That won't impact your status as cap-exempt - but without the petition #, you're out of luck.

Now I understand why the Indian companies make their employees sign lengthy contracts with penalties and whatnot if they leave their employment before X years . . . . I used to think it was akin to slavery, now I'm thinking it's maybe the only way they have to protect themselves against employees that make THEM front all the costs (lawyers, USCIS fees, etc) - only to then use that petition to go work for another employer.

[avppgv]

You can certainly do that. However, company A may not provide you with the petition # - and hence, without it, you cannot apply for cap-exempt. And as soon as you resign Company A, I'm sure they will cancel your H1B. That won't impact your status as cap-exempt - but without the petition #, you're out of luck.

Now I understand why the Indian companies make their employees sign lengthy contracts with penalties and whatnot if they leave their employment before X years . . . . I used to think it was akin to slavery, now I'm thinking it's maybe the only way they have to protect themselves against employees that make THEM front all the costs (lawyers, USCIS fees, etc) - only to then use that petition to go work for another employer.

Thanks a lot for detailed response. I think I would be able to get the petition # out from them before I resign (infact, as soon as the application is filed). Just to clarify once again - I know that usually you can apply for a new H-1B cap-exempt once you have had an H-1B approved in the past, but still want to confirm in this particular situation - although I would have had an approved H-1B, but I would have never worked on that visa. Does the cap-exempt thing still apply?