H4 to H1B approved: don't want to join

[garima1]

Hi there,

My H1b was applied this year (2014) and got a notification that my petition got selected in lottery for Fiscal Year 2014. I got an RFE and hopefully it will get approved.

Now, if I consider this case:

Say my petition got approved. Now, I don't want to join the company (who applied for my visa) for some xyz reasons.

I assume my COS will not be filed if I do not join the company. (Need clarity on this)

So my questions are:

1. Would it be possible for another company to apply for my h1b visa before october 1st.
2. If I do not join the company and stay on H4, can I apply in a new company in January'15 with the same H1-B. If yes, can I join soon after my H1 B transfer approval or I will have to wait until Oct 1, 2015 in that case? What are the chances of approval as I do not have pay stubs from last company.
3. For my new h1b visa would I be considered for normal H1b cap or will be exempted form H1b cap.

[raghvi]

Hi there,

My H1b was applied this year (2014) and got a notification that my petition got selected in lottery for Fiscal Year 2014. I got an RFE and hopefully it will get approved.

Now, if I consider this case:

Say my petition got approved. Now, I don't want to join the company (who applied for my visa) for some xyz reasons.

I assume my COS will not be filed if I do not join the company. (Need clarity on this)

So my questions are:

1. Would it be possible for another company to apply for my h1b visa before october 1st.
2. If I do not join the company and stay on H4, can I apply in a new company in January'15 with the same H1-B. If yes, can I join soon after my H1 B transfer approval or I will have to wait until Oct 1, 2015 in that case? What are the chances of approval as I do not have pay stubs from last company.
3. For my new h1b visa would I be considered for normal H1b cap or will be exempted form H1b cap.

COS or no COS decision is done before hand whiel applying for H1 initially, so ask the employer if they filed a COS or not. If they did, and COS gets approved, then you have to work for the new employer from 01-Oct-2014.

1. If current approval notice is available, yes it can be possible.
2. No you cannot continue on H4 from 01-Oct-2014 if your H1 was applied as COS, and is approved, then you must work with the employer from 01-Oct-2014 otherwise you will go out of status. To avoid this either the employer has to file amendment to convert from COS to Consular OR you can leave US before 01-Oct-2014 and return after 01-Oct-2014 on H4 visa, (read around for leap frog)
3. If you are cap counted and H1 approved, you would be cap exempt for the next 6 Years.

This is my opinion not legal advice.

[garima1]

Thanks for your reply.

1. How can I know if it was COS or without COS? I have the RFE copy it says - I-129 petition for non immigrant worker.

2. In case my H1 B was not applied as COS then I can simply not join the company and get my H1 B transferred to some other company in January (as I can not work in Oct to Dec due to personal reasons)? This is the most important thing for me to know as of now. Please elaborate if you can.

3. If H1-B was applied as COS and the company withdraws the employment then what will be my status on Oct 1?

[raghvi]

Thanks for your reply.

1. How can I know if it was COS or without COS? I have the RFE copy it says - I-129 petition for non immigrant worker.

2. In case my H1 B was not applied as COS then I can simply not join the company and get my H1 B transferred to some other company in January (as I can not work in Oct to Dec due to personal reasons)? This is the most important thing for me to know as of now. Please elaborate if you can.

3. If H1-B was applied as COS and the company withdraws the employment then what will be my status on Oct 1?

1. Your employer and their attorney would know. I doubt you can see the I129 that was filled for you. The Form I129 has Part 2 Point 4 First check box is for Consular process and Second for COS.
Most of the employers file for a COS, because if employee pushes for Consular process, they get to sense that you wont be joining them soon and might try for a transfer too. When you receive the I797A from your employer, if it has a I-94 at the bottom then its a COS otherwise if it is a I797B then it is consular process.
2. Yes it is possible, only if the H1 was not applied as COS.

If you want to avoid going out of status OR to travel outside US, then advisable to talk to the employer to let them know you cannot join till January and to convert from COS to Consular, if they decline then you dont have much options.

This is my opinion not legal advice.

[garima1]

Got it. Thanks a lot, there were lot of unknown territories that I was unaware of.

So let me take the worst case - If they have applied as COS and they don't hire me as I can not join them in October - That means I will have to travel outside US and come back on H4 stamping. But I can not travel during that time as I am expecting and will be in my final trimester. And as it's an Indian consultancy, I don't think they care much...looking at this situation, what will you suggest me?