Portability from H1 Cap Exempt to H1 Cap Subject

[bazizi]

Hi there,

My Cap Exempt H1 will end on September 1st (2015). I've got approval from USCIS for H1 Cap Subject which starts October 1st (2015).
My question is: can I stay in country and start my work from October 1st or I have to leave the country and come back on October 1st?

Appreciate your help
b

[shervin143]

My Cap Exempt H1 will end on September 1st (2015). I've got approval from USCIS for H1 Cap Subject which starts October 1st (2015).
>>> Confused. If you are already CAP exempted, then why didn't you just transfer or extend your petition. Why did you go for a new CAP subjective H1B with a start date of Oct 1st? How many years have you already used in H1B status?

My question is: can I stay in country and start my work from October 1st or I have to leave the country and come back on October 1st?
>>> You need to leave the country. You need a valid I-94 to stay in the country. Anytime spend in U.S without a valid I-94 will be treated as illegal stay.

[bazizi]

My Cap Exempt H1 will end on September 1st (2015). I've got approval from USCIS for H1 Cap Subject which starts October 1st (2015).
>>> Confused. If you are already CAP exempted, then why didn't you just transfer or extend your petition. Why did you go for a new CAP subjective H1B with a start date of Oct 1st? How many years have you already used in H1B status?

My question is: can I stay in country and start my work from October 1st or I have to leave the country and come back on October 1st?
>>> You need to leave the country. You need a valid I-94 to stay in the country. Anytime spend in U.S without a valid I-94 will be treated as illegal stay.

Thanks Shervin

Sorry for my brief explanation. I changed my job from non profit organization to private sector. So I had to apply for cap subject H1. I used the first three years of H1 status and I got a new one for another three years (which is not cap exempt any more)

[shervin143]

Got it! You will need to leave and re-enter on or after September 21st on a valid H1B visa if your CAP subjective H1B is effective from Oct 1st.

Thanks Shervin

Sorry for my brief explanation. I changed my job from non profit organization to private sector. So I had to apply for cap subject H1. I used the first three years of H1 status and I got a new one for another three years (which is not cap exempt any more)

[bazizi]

Got it! You will need to leave and re-enter on or after September 21st on a valid H1B visa if your CAP subjective H1B is effective from Oct 1st.

Thanks Shervin,

It means I can stay during September and leave on or after 21st of September and come back with a new H1 visa?

B

[shervin143]

You need to leave before your current I-94 expires. If you stay beyond your I-94 expiry date, your stay is considered illegal. Return back on or after Sept 21st on a valid H1B visa are start working for the new employer from Oct 1st 2015.

Thanks Shervin,

It means I can stay during September and leave on or after 21st of September and come back with a new H1 visa?

B

[bazizi]

You need to leave before your current I-94 expires. If you stay beyond your I-94 expiry date, your stay is considered illegal. Return back on or after Sept 21st on a valid H1B visa are start working for the new employer from Oct 1st 2015.

Thanks Shervin for your prompt response, is there any legal way to avoid leaving US?

[shervin143]

You can file a COS to some other status before your I-94 expires. Filing a COS from H1B to B1/B2 is risky as that would show that your main intention for COS to stay in U.S and not tourism. To file a COS to F1 you will need admission to a school. If you do not wan to complicate anything and if you would like to keep things simple, leave U.S before I-94 expiry date and re-enter on or after Sept 21st.

Thanks Shervin for your prompt response, is there any legal way to avoid leaving US?

[bazizi]

You can file a COS to some other status before your I-94 expires. Filing a COS from H1B to B1/B2 is risky as that would show that your main intention for COS to stay in U.S and not tourism. To file a COS to F1 you will need admission to a school. If you do not wan to complicate anything and if you would like to keep things simple, leave U.S before I-94 expiry date and re-enter on or after Sept 21st.

I've heard about portability rule for H1 but its very confusing
Can you please also tell me why I can't use portability rule since this is an extension of my H1?

[shervin143]

Your case is not an extension of H1B status. Once your I-94 expires, you are in no status. You can get back to H1B status only on Oct 1st, that too if you leave and return back in H1B visa.
I suggest that you consult an immigration attorney to figure out if there are other possible ways.

I've heard about portability rule for H1 but its very confusing
Can you please also tell me why I can't use portability rule since this is an extension of my H1?