H1B Out of Cap Petition : Change of Employer

[onlineseek]

Dear Immihelp Team,

Currently my employer has filed for H1B out of cap petition with USCIS. I will soon be getting acknowledgement number.However, it may take 2-3 months before I get the approved petition.

Is it possible for me to switch to a new employer only on the basis of acknowledgement number and before the approval of petition?
Can the new employer initiate H1B transfer only on the basis of acknowledgement number ?

Thanks a lot for your time and help.

Regards,
onlineseek

[RMH1]

It depends up on your current VISA status. If you are on L1 and applied for Cap exempt, you should wait for petition approval before you work with that employer.

[kabkaba]

What is your current status? Are you in the US?

[onlineseek]

What is your current status? Are you in the US?

Hi Kabkaba,

Thanks for your response.

My current status is L2 Visa and I am currently working on EAD. My earlier H1B petition was revoked by my previous employer when I resigned. Earlier I had stayed on H1 for a total period of 1.5 years and had left US in June 2011. I re-entered US on L2 in Aug 2012 and am currently working on EAD.

[kabkaba]

Since your status has not changed you can certainly join the new employer based on your EAD. But once the COS gets approved, you will have to be working for the petitioning employer only. In order for you to work with the new employer, the new employer should file H1 petition (cap-exempt based on old employer's petition) and they should file it in Premium processing. Also, the current employer should withdraw their petition so that your status does not change with their petition.

[onlineseek]

Since your status has not changed you can certainly join the new employer based on your EAD. But once the COS gets approved, you will have to be working for the petitioning employer only. In order for you to work with the new employer, the new employer should file H1 petition (cap-exempt based on old employer's petition) and they should file it in Premium processing. Also, the current employer should withdraw their petition so that your status does not change with their petition.

Thanks Kabkaba for your quick response and your help. I had 2 queries :

1) As I understand from your response, in order for me to join a new employer on H1B (and not EAD) before my current in-progress H1B petition gets approved,the new employer should file cap exempt H1 under premium processing. So my concern was will the USCIS question as to why two H1B cap exempt have been filed for the same candidate?

2) Assuming, I stay with my current employer till my H1B COS petition gets approved, then to join a new employer, I just have to get the H1B transferred as happens in regular cases? Do I have to get stamping done b4 new employer initiates transfer or stamping is not related in this case?

Thanks again for your response and help.