H1b transfer without starting to work for the sponsor employer who did petition

[magnet86]

Hi Immihelp members,

I am in F1-OPT. I just started working with a full time job with employer A while Employer B has filed petition for this year. I signed the offer letter from employer B without any specific agreement about duration or contract.
As the H1b process is in progress, I do not know yet whether it has been picked up in the lottery. What are my options if it gets picked up?
1. Can I continue working with employer A with a possibility of H1 transfer before joining employer B? If I do not wish to join Employer B, do I need to forfeit the h1b?
It would be very helpful if anyone could provide me a clear picture on this.

[raghvi]

Hi Immihelp members,

I am in F1-OPT. I just started working with a full time job with employer A while Employer B has filed petition for this year. I signed the offer letter from employer B without any specific agreement about duration or contract.
As the H1b process is in progress, I do not know yet whether it has been picked up in the lottery. What are my options if it gets picked up?
1. Can I continue working with employer A with a possibility of H1 transfer before joining employer B? If I do not wish to join Employer B, do I need to forfeit the h1b?
It would be very helpful if anyone could provide me a clear picture on this.

Was H1 for B filed as premium processing? Was it filed as a COS?

1. Yes you can continue to work for A as long as the approval of "transfer petition" to A is done before the beginning of start of petition of B.

This is my opinion not legal advice.

[magnet86]

Was H1 for B filed as premium processing? Was it filed as a COS?

1. Yes you can continue to work for A as long as the approval of "transfer petition" to A is done before the beginning of start of petition of B.

This is my opinion not legal advice.

Answer: No it was not filed as Premium processing. I think it was filed as Change of Status. So my next question is:
Does employer A has to do petition before October 1?
Do I need to get the I797 from Employer B before they start petition and ask them not to proceed? As well as ask employer A to transfer petition?
What documents related to the h1b approval from employer B I would need in order to transfer petition?

[raghvi]

Answer: No it was not filed as Premium processing. I think it was filed as Change of Status. So my next question is:
Does employer A has to do petition before October 1?
Do I need to get the I797 from Employer B before they start petition and ask them not to proceed? As well as ask employer A to transfer petition?
What documents related to the h1b approval from employer B I would need in order to transfer petition?

In case it was filed as COS, then upon H1 petition approval, and COS start date you would automatically move to H1 status for Employer B and must work with them . In order for you to avoid working for B, but at the same time taking advantage of having been selected in lottery, the employer A would have to file a cap exempt petition before the start date with B. You would need the approval notice from B in order for this to happen.

Timing is critical hence in such cases advisable to have it processed as premium so that you get time to process the "transfer".

This is my opinion not legal advice.

[magnet86]

In case it was filed as COS, then upon H1 petition approval, and COS start date you would automatically move to H1 status for Employer B and must work with them . In order for you to avoid working for B, but at the same time taking advantage of having been selected in lottery, the employer A would have to file a cap exempt petition before the start date with B. You would need the approval notice from B in order for this to happen.

Timing is critical hence in such cases advisable to have it processed as premium so that you get time to process the "transfer".

This is my opinion not legal advice.

Thank you so much for your reply. I need little more help.
Questions:
1. Is there any option to change the COB now?
3. Let's consider I do not get I797 from employer B and/or employer A does not agree to do cap exempt petition. What are my options?
3. The advise you provide about processing it as premium, which petition did you refer to? The one which is already done by Employer B or the cap exempt petition I would have to ask my employer A?

[raghvi]

Thank you so much for your reply. I need little more help.
Questions:
1. Is there any option to change the COB now?
3. Let's consider I do not get I797 from employer B and/or employer A does not agree to do cap exempt petition. What are my options?
3. The advise you provide about processing it as premium, which petition did you refer to? The one which is already done by Employer B or the cap exempt petition I would have to ask my employer A?

1. COS you mean, the option would be available only with the employer who filed your H1 after the initial receipt generation.
3. If COS gets into effect and B does not give you the I797 and A does not agree to do the cap exempt then only option to continue working with A would be to leave US, and re enter on existing F1 visa and work with A on OPT.
3. I would say both applications(B's petition and subsequently A's cap exempt petition) to go through premium.

This is my opinion not legal advice.

[magnet86]

1. COS you mean, the option would be available only with the employer who filed your H1 after the initial receipt generation.
3. If COS gets into effect and B does not give you the I797 and A does not agree to do the cap exempt then only option to continue working with A would be to leave US, and re enter on existing F1 visa and work with A on OPT.
3. I would say both applications(B's petition and subsequently A's cap exempt petition) to go through premium.

This is my opinion not legal advice.

1. So do you mean it can be changed after receipt generation? Should I ask now employer B to change COS to consular petition? Do I get any benefit in that?
I think I can continue working in F1-OPT in consular petition until I go back to my home country and get H1b stamped right?

[raghvi]

1. So do you mean it can be changed after receipt generation? Should I ask now employer B to change COS to consular petition? Do I get any benefit in that?
I think I can continue working in F1-OPT in consular petition until I go back to my home country and get H1b stamped right?

1. It can be changed, but the moment you tell that to B they will most likely get a doubt that you dont intend to join them. Yes you can continue to work with F1-OPT if H1 doesn't get activated due to a COS.
The challenge is how do you convince B to do a Consular at the same time convince them to give you the petition approval (if it gets approved) when you dont have any intention to join B.


This is my opinion not legal advice.

[magnet86]

1. It can be changed, but the moment you tell that to B they will most likely get a doubt that you dont intend to join them. Yes you can continue to work with F1-OPT if H1 doesn't get activated due to a COS.
The challenge is how do you convince B to do a Consular at the same time convince them to give you the petition approval (if it gets approved) when you dont have any intention to join B.


This is my opinion not legal advice.

Yes. That's a challenge. I do not know yet what I would do. I do not have clear information of the whole process. Thanks for all of your help.
1. Can any employer do CAP Exempt petition?

[raghvi]

Yes. That's a challenge. I do not know yet what I would do. I do not have clear information of the whole process. Thanks for all of your help.
1. Can any employer do CAP Exempt petition?

Its not as much as a process challenge but rather a people challenge :-).
1. Yes any valid employer having a H1 be eligible position can file a Cap exempt petition.

This is my opinion not legal advice.

[magnet86]

Its not as much as a process challenge but rather a people challenge :-).
1. Yes any valid employer having a H1 be eligible position can file a Cap exempt petition.

This is my opinion not legal advice.

Thank you so much for your help. I have few more questions.
1. If I get the I797, do I need to inform anything employer B? Or should I just discuss with employer A where I am working and ask them to file a cap exempt petition?
2. By when do you think employer A has to file a Cap exempt petition?

[raghvi]

Thank you so much for your help. I have few more questions.
1. If I get the I797, do I need to inform anything employer B? Or should I just discuss with employer A where I am working and ask them to file a cap exempt petition?
2. By when do you think employer A has to file a Cap exempt petition?

1. As a courtesy you should, if you dont intend to join them. But make sure you have a commitment from A before you go ahead and announce it to B, as otherwise you may end up without a job from B and a non committed A.
2. Before B's H1 start date, and I would say ask A to file in premium.

This is my opinion not legal advice.

[magnet86]

1. As a courtesy you should, if you dont intend to join them. But make sure you have a commitment from A before you go ahead and announce it to B, as otherwise you may end up without a job from B and a non committed A.
2. Before B's H1 start date, and I would say ask A to file in premium.

This is my opinion not legal advice.

1. To file the petition, would employer B ask me to join them for issuing pay checks before October 1? They did not say anything about joining dates.
2. Before joining them can I ask them to provide me the I-797 or approval notice?

[magnet86]

Thank you so much for your answers Raghvi. I need little more clarification. It would be great if you could help.
1. To file the petition, would employer B ask me to join them for issuing pay checks before October 1? They did not say anything about joining dates yet.
2. If they ask me to join them and I don't or delay or try to negotiate, can they withdraw the petition? What are my options here?

[magnet86]

Thank you so much for your answers Raghvi. It would be great if you could help little more.
1. To file the petition, would employer B ask me to join them for issuing pay checks before October 1? They did not say anything about joining dates yet.
2. If they ask me to join them and I don't or delay or try to negotiate, can they withdraw the petition? What are my options here?
3. If the petition from employer B gets rejected by USCIS, does my H1b gets invalid/cancelled even in case employer A ( where I am working now) agree to do cap exempt petition?