Currently on L2 EAD and H1B petition approved which will be revoked

[tejald]

Hi,

I am currently on L2 EAD and have H1B petition (without I-94) approved effective from 1st Oct. I have resigned from my company and according to company policy, it will be revoked once I leave.

I need advice on following urgently

1. Can another employer file cap exempt H1b later? Or do I have again go through lottery process.
2. What happens if I leave the company before 1st Oct.?
3. Is it required for me to go out of U.S and come back on H1B to get cap exemption.
4. If I get H1 stamped, can it be transferred to new employer immediately.
5. What will be the status after H1B gets stamped?
6. What if I want to switch back to L2 EAD?

Thanks in advance.

[shervin143]

1. Can another employer file cap exempt H1b later? Or do I have again go through lottery process.
>>> Post Oct 1st, they can file a CAP exempt H1B for you.

2. What happens if I leave the company before 1st Oct.?
>>> If the company revoked the H1B before Oct 1st, then you are no longer subjected to H1B CAP. You need to go through quota again.

3. Is it required for me to go out of U.S and come back on H1B to get cap exemption.
>>> Nope.

4. If I get H1 stamped, can it be transferred to new employer immediately.
>>> Post Oct 1st, YES.

5. What will be the status after H1B gets stamped?
>>> There is no status when you are outside U.S. Your status will be based on what visa you use to enter U.S.

6. What if I want to switch back to L2 EAD?
>>> A COS from H1B to L2 need to be filed.

[tejald]

Thank you Shervin for answers.
I have another question - If I choose not to get my H1B stamped and continue on my L2 EAD instead, upon finding a very good employer (say 6 months later), can I file cap-exempt H1B from the new employer based on this revoked petition and then get H1B stamped?

Alternatively, if another employer is willing to transfer this H1B petition, before I move out of my current company, can this H1B petition be transferred? Do I need to get H1B stamped after that or can I continue on EAD while a new approved petition will be issued for me under new employer?

[shervin143]

I have another question - If I choose not to get my H1B stamped and continue on my L2 EAD instead, upon finding a very good employer (say 6 months later), can I file cap-exempt H1B from the new employer based on this revoked petition and then get H1B stamped?
>>> Possible if you have a copy of the approved H1B petition.

Alternatively, if another employer is willing to transfer this H1B petition, before I move out of my current company, can this H1B petition be transferred?
>>> Possible post Oct 1st.

Do I need to get H1B stamped after that or can I continue on EAD while a new approved petition will be issued for me under new employer?
>>> If you want to continue on L2 then why do you want to transfer the petition at the first place? If the employer files a COS from L2 to H1B and if the COS gets approved (with a new I-94) then you are in H1B status and you should be working for that employer and get paid to maintain the H1B status. There is no point in asking an employer to file the H1B transfer for consular process if you are planning to stay in L2.

[tejald]

Thanks a lot for this useful info.

In continuation to previous question on L2 EAD to H1 transfer requesting answers on another Scenario and Question -

If I continue on L2 EAD - Move out of my current employer after 1st Oct (My employer's attorney confirmed that this is a councellor approved petition and hence as per employer's rules it will be revoked after I leave) - later I get a good employer and decide to file for a change of status through this new employer to move from L2 EAD to H1B
Question - What happens if my old-employer has revoked the petition?

If I re-enter on H1B - If I go to home country - get H1B approved - return on H1B leading to COS automatically - decide to move out immediately after that with or without job in hand
Question - how long can I continue without a new job on H1B and when should I go for a COS on L2 EAD if I don't land a job of liking?

[shervin143]

If I continue on L2 EAD - Move out of my current employer after 1st Oct (My employer's attorney confirmed that this is a councellor approved petition and hence as per employer's rules it will be revoked after I leave) - later I get a good employer and decide to file for a change of status through this new employer to move from L2 EAD to H1B
Question - What happens if my old-employer has revoked the petition?
>>> CAP will be valid even if the petition is revoked. Revoking the petition means that you cannot work for that specific employer.

If I re-enter on H1B - If I go to home country - get H1B approved - return on H1B leading to COS automatically - decide to move out immediately after that with or without job in hand
Question -

how long can I continue without a new job on H1B
>>> 0 days. When you are in H1B status, you should be working and getting paid every single day to maintain the H1B status.

and when should I go for a COS on L2 EAD if I don't land a job of liking?
>>> If you are out of status, then a COS from H1B to L2 is not possible. You need to provide pay slips for the COS.

[tejald]

I gained a lot of clarity from your answers. Thanks again for timely help. Highly appreciate it.

I think I will stay with current employer until beyond 1st Oct so that the H1B Petition is effective. As I now understand why the company attorney mentioned about revoking the petition, which is simply to let USCIS know that I am no longer associated with the company. This also means that I will need to reapply for the H1B visa/ petition from new employer and it will be cap exempt. Thus I will continue on L2 EAD until I find a very good employer through which I will reapply for H1B under the reference of current petition, even though it may be revoked by then.

If I may ask another question - kindly share your inputs
Q - When I reapply for H1B from a new employer, will applying for a new H1B Visa (Stamping) or applying for a COS in reference to a "previously approved but revoked" H1B petition, be a direct process? Is there a possibility of this cap-exempt application getting rejected or receiving a query? Please advice.

[shervin143]

Q - When I reapply for H1B from a new employer, will applying for a new H1B Visa (Stamping) or applying for a COS in reference to a "previously approved but revoked" H1B petition, be a direct process?
>>> If you are inside U.S, then you will be filing a COS from L2 to H1B. You cannot work for the H1B sponsor until the COS gets approved (with a new I-94).

Is there a possibility of this cap-exempt application getting rejected or receiving a query? Please advice.
>>> Possible. It depends on the document that the employer submits while filing your petition and the reputation of the employer.

[tejald]

Thank you again. Adding another scenario and question. Highly appreciate your inputs.

When I reapply for the H1B based on the current revoked document, if I join a similar job (which I will) and the job description is the same at the new employer, then I am assuming the chances of rejection would be very low. What could be the most important reason for rejection? Job description change, new employer credibility or lack of a H1B stamp?

However, if there are any chances at all of the H1B request being rejected, I can look at getting H1B stamped and make a re-entry. In such a case, I will need to file for a change of status immediately upon entry (may be next day). Will this be questionable in such a case? And will H1B be secured as I have a stamped H1B based on which I will apply for transfer from a new employer. In the mean time, current employer may have submitted the revocation also and USCIS may have applied it as well. Hence when I reapply, I will mostly be back on L2 EAD as I would have applied for a COS from H1B to L2 EAD upon re-entry as it is unlikely I find a reputable employer in such a short span.

[shervin143]

When I reapply for the H1B based on the current revoked document, if I join a similar job (which I will) and the job description is the same at the new employer, then I am assuming the chances of rejection would be very low. What could be the most important reason for rejection? Job description change, new employer credibility or lack of a H1B stamp?
>>> There are multiple reasons for petitions getting rejected. If you search immihelp you will find 1000s of posts. Chances of rejection is high in case your employer is a consultancy company.

However, if there are any chances at all of the H1B request being rejected, I can look at getting H1B stamped and make a re-entry. In such a case, I will need to file for a change of status immediately upon entry (may be next day). Will this be questionable in such a case?
>>> No.

And will H1B be secured as I have a stamped H1B based on which I will apply for transfer from a new employer.
>>> Your H1B visa will have no impact on your transfer.

In the mean time, current employer may have submitted the revocation also and USCIS may have applied it as well. Hence when I reapply, I will mostly be back on L2 EAD as I would have applied for a COS from H1B to L2 EAD upon re-entry as it is unlikely I find a reputable employer in such a short span.
>>> That won't be an issue.