Cap-Exempt H1 to Cap-Subjective H1 and Consular Processing H1

[ritznim]

Hello Team,

I really appreciate for all your great work and information about the immigration for many Indians here in the United States.

I am in a situation where I have no clarity on how to plan ahead with immigration. let me explain you a little bit

I am on OPT EAD (started on 02 Feb 2016 and the expiry date was printed as 28 Dec 2016 - this could be because I requested a start date on 28 Dec 2015), now I am working on a full time employment with Mayo Clinic, which is a non-profit organization. My employer is filing my H1B non-profit petition for me as the new OPT extension ruling is confusing and involves a lot of reporting for them.

But, I have both advantages and dis-advantages here in this case:
Advantages:
1. I dont have to worry about the Cap and hence no hassle of lottery.
2. Also, non-profit H1 are all year rolling - i need not wait till April

Dis-Advantages:
1. If i want to exit the company or if they send me out, I will lose my status and I have to leave to India
2. I have no idea on how can i transfer to Cap-subjective H1, if I want to later join a profit organization.

After have researched on the internet, the two options for me to move to Cap-subjective H1 are:
1. get the cap-subjective H1 (change of status) filed for next April by a new employer/consultancy and go thru the lottery - in this case, I need to look for jobs starting August-Oct. - My question here is, how much before can I move on to the new (cap-subjective H1) payroll? the early I can work on new H1, the early I can look for new jobs

2. What if I can file a cap-subjective H1 (consular Processing) so that I need to go out of the country, attend the VISA interview and come back. My question here is, Will the CP H1 gets activated whenever I enter back into the United States or does it have a time frame when before I should enter – If I can file my CP H1 and if I have a chance to activate it whenever I can, then I don’t have to worry about moving into the new payroll from Oct and I can choose when to switch job and hence can leave the country, attend the interview and come back to work with a new employer.

Thanks very much in Advance. Any of your input is valuable and highly appreciated !

Hope to hear back,
Thanks,
Ritz

[raghvi]

Hello Team,

I really appreciate for all your great work and information about the immigration for many Indians here in the United States.

I am in a situation where I have no clarity on how to plan ahead with immigration. let me explain you a little bit

I am on OPT EAD (started on 02 Feb 2016 and the expiry date was printed as 28 Dec 2016 - this could be because I requested a start date on 28 Dec 2015), now I am working on a full time employment with Mayo Clinic, which is a non-profit organization. My employer is filing my H1B non-profit petition for me as the new OPT extension ruling is confusing and involves a lot of reporting for them.

But, I have both advantages and dis-advantages here in this case:
Advantages:
1. I dont have to worry about the Cap and hence no hassle of lottery.
2. Also, non-profit H1 are all year rolling - i need not wait till April

Dis-Advantages:
1. If i want to exit the company or if they send me out, I will lose my status and I have to leave to India
2. I have no idea on how can i transfer to Cap-subjective H1, if I want to later join a profit organization.

After have researched on the internet, the two options for me to move to Cap-subjective H1 are:
1. get the cap-subjective H1 (change of status) filed for next April by a new employer/consultancy and go thru the lottery - in this case, I need to look for jobs starting August-Oct. - My question here is, how much before can I move on to the new (cap-subjective H1) payroll? the early I can work on new H1, the early I can look for new jobs

2. What if I can file a cap-subjective H1 (consular Processing) so that I need to go out of the country, attend the VISA interview and come back. My question here is, Will the CP H1 gets activated whenever I enter back into the United States or does it have a time frame when before I should enter – If I can file my CP H1 and if I have a chance to activate it whenever I can, then I don’t have to worry about moving into the new payroll from Oct and I can choose when to switch job and hence can leave the country, attend the interview and come back to work with a new employer.

Thanks very much in Advance. Any of your input is valuable and highly appreciated !

Hope to hear back,
Thanks,
Ritz

1. Current year's Cap is already filled. The new cap will open 01-April 2017 and H1 employment on that can begin only on or after 01-Oct-2017. In most likelihood its going to be another lottery year in April 2017. So if at all your petition does get selected in lottery, and eventually approved, the earliest you can start working on that H1 is 01-Oct 2017.
2. Again, even if you apply it as consular process, the earliest you can work on it is 01-Oct-2017.

This is my opinion not legal advice.

[ritznim]

1. Current year's Cap is already filled. The new cap will open 01-April 2017 and H1 employment on that can begin only on or after 01-Oct-2017. In most likelihood its going to be another lottery year in April 2017. So if at all your petition does get selected in lottery, and eventually approved, the earliest you can start working on that H1 is 01-Oct 2017.
2. Again, even if you apply it as consular process, the earliest you can work on it is 01-Oct-2017.

This is my opinion not legal advice.

I understood that I can only start on Oct 1st. But, in case of Consular processing, is it upto our wish when we cant to go out of the country, attend the interview, come back and get the H1 activated, meaning anytime after 1st Oct 2017, for example Dec 2017?

Thanks

[raghvi]

I understood that I can only start on Oct 1st. But, in case of Consular processing, is it upto our wish when we cant to go out of the country, attend the interview, come back and get the H1 activated, meaning anytime after 1st Oct 2017, for example Dec 2017?

Thanks

Yes and No. You can, but the process is not as easy as deciding in Dec 2017 that you want to work for the "for profit" employer and join them.

When you leave US, and go for H1 stamping, lets say in July/Aug 2017. In the DS-160 form that you fill up to attend the H1 interview, you have to mention the H1 petition and employer with whom you intend to work. Now, if you mention the petition details of your cap exempt employer (example, Mayo Clinic in your case), and the visa officer grants you the H1 visa, your H1 visa will have the name Mayo Clinic on it. When you enter US using this visa, you may have to show the I797 of Mayo Clinic, and the officer at the Port Of Entry will stamp your entry and in the records you would show to be working with Mayo Clinic and you must work with them.

Now, if you want to move to the "for profit" h1 employer and work for them, then they would have to file a fresh I129 with USCIS as and when you decide to move and work with them. Lets say your employer files it in Dec 2017, in premium processing If all documentation is valid, the approval of this will result in a new I797. Now this I797 can be approved with a new I-94 or without a new I94. If it comes with a new I-94 then as per the date of the I797 you must work with the H1 for profit employer and should get paid by them. If it does not come with a new I-94 then you should leave US and re enter, this time showing the new I797 of the new H1 employer.

This is my opinion not legal advice.

[daggit]

I really appreciate for all your great work and information about the immigration for many Indians here in the United States.

On a side note, this forum is open to anyone willing to contribute toward discussions.. Indians as well as participants from other nations.