H1B Transfer before Oct 1st if filed as consular processing

[megahunt]

Hi forum members,

Let's imagine the following circumstances:
Graduate student on F1 visa got an offer from employer A. A applies for the H1B in April 2017. A uses consular processing to allow for international travel (instead of change of status). Later in April, the student is notified that he/she has been drawn in the H1B lottery. As is life, now the student decides that he/she desperately wants to work for employer B instead.

Question:
When would employer B be able to transfer the H1B to employer B? How would this be impacted by consular processing?

Thank you.

Best,
Megahunt

[scientist2016]

B can file a cap exempt H1 anytime. Once that is approved you can get the visa stamped. Alternately, you can get the visa stamped as per the existing petition, and come to the US. B can then file H1B transfer after you start working for A. This can then be a COS, so no need to depart the US.

[megahunt]

B can file a cap exempt H1 anytime. Once that is approved you can get the visa stamped. Alternately, you can get the visa stamped as per the existing petition, and come to the US. B can then file H1B transfer after you start working for A. This can then be a COS, so no need to depart the US.

Hi Scientist, thanks for the reply.

Follow-up Q1) Can the cap exempt H1 petition already be filed after the receipt notice has been received (now), or would B have to wait until the H1B is approved (which can take a while due to suspension of premium processing)?

Follow-up Q2) To be honest, I'm a bit surprised that it is so easy. I thought that a few years ago USCIS changed the rules and now you have to first start work for A before you can initiate the transfer to B?

[scientist2016]

You would have to wait until your H1B is approved.
Yes you have to start working to initiate transfer, since you would have to submit the copies of paystubs along with your application. But a cap exempt petition is different right: You are not asking for a transfer, merely the company is asking that your H1B petition be not double counted. If you have begun working, then B can either initiate transfer or file a cap exempt petition.

[megahunt]

You would have to wait until your H1B is approved.
Yes you have to start working to initiate transfer, since you would have to submit the copies of paystubs along with your application. But a cap exempt petition is different right: You are not asking for a transfer, merely the company is asking that your H1B petition be not double counted. If you have begun working, then B can either initiate transfer or file a cap exempt petition.

Hi Scientist, I think it's starting to make sense to me. I didn't know there was a difference between "filing a cap exempt petition" and "transferring H1B from A to B".

Follow-up Q3:
What's the downside of the cap-exempt application (instead of transfer)? Seems that it is easier, as the student would not have to start working for A first. Processing time? Risk? Cost?

Follow-up Q4:
For the cap-exempt application, does the student also need to wait for the approval of his first petition?


Thanks as always!

[scientist2016]

(3) As far as I know I do not see any downside for one option over the other. In some cases, you will have only option. For instance, let us say you used your H1 partially, left the US, and want to come back shortly afterwards. Since you are at that point not in H1 status, you cannot file a transfer petition, and hence HAVE to file a cap exempt petition.
(4) Yes you would have to wait until your H1 is approved. Approval indicates you have been counted under the cap. Then you can file a cap exempt petition asking that your H1 be not counted twice.

[megahunt]

(3) As far as I know I do not see any downside for one option over the other. In some cases, you will have only option. For instance, let us say you used your H1 partially, left the US, and want to come back shortly afterwards. Since you are at that point not in H1 status, you cannot file a transfer petition, and hence HAVE to file a cap exempt petition.
(4) Yes you would have to wait until your H1 is approved. Approval indicates you have been counted under the cap. Then you can file a cap exempt petition asking that your H1 be not counted twice.

That is very helpful, thanks! Just to make sure that I got everything right:

If the student wants to work for B without working for A first, he/she would have B file a cap-exempt H1B petition for him/her after approval of the original petition. Let's say the H1B gets approved June 30, then B would file a cap exempt petition immediately afterwards on July 1st.

Follow-up Q5:
I assume that due to the suspension of premium processing, the new cap-exempt petition would likely take a few months to get approved?


Follow-up Q6:
Could A still revoke the H1B after the original petition has been approved? In other words, is the visa only "safe" after the second (cap-exempt) petition has been approved, which could be as late as September/October?

[scientist2016]

Yes approval could take some time these days.
Yes, A can always revoke the H1. But after the initial approval, A's revocation should not have any effect on B's subsequent filing.

[ssching2288]

Yes approval could take some time these days.
Yes, A can always revoke the H1. But after the initial approval, A's revocation should not have any effect on B's subsequent filing.

This is what i found:

"In a May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:

If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap."

so does that mean if A revoke before B approval (prior to Oct), then you lose your slot under the cap?

[scientist2016]

Yes. If you are ding COS, then oct 1 is the cutoff point. If not, your application for visa/grant of visa is the cut off point.

[megahunt]

Yes. If you are ding COS, then oct 1 is the cutoff point. If not, your application for visa/grant of visa is the cut off point.

When you say "application for visa/grant", do you mean the day the student goes to the consulate abroad to "activate" the H1B? So the cutoff would be on or after October 2 (Monday)?

Also, does anyone know if employers are required to revoke the H1B, or is it up to them to keep the petition open? In other words: Could you just ask A to please be nice to you, or is there no other choice than playing games with A?

[megahunt]

I'm trying to summarize what I learned in this thread and in other places. Can someone confirm the below?

1) As soon as A's H1B petition gets approved (expected to happen between now and July), B may file a cap-exempt petition.
2) Depending on when premium processing is resumed, the approval of the new petition could take until Mid-October (the suspension is supposed to end on/before October 1st, at which point you could do an upgrade to premium)
3) If A revokes the petition before B's approval, B's petition will be denied (no longer cap exempt)


Thus, the key unknown is if A is likely to revoke the petition. There is no economic benefit for them in doing so. Is there a legal obligation?

[micacomp]

H-1B Visa Curiosity

Actually don't understand H-1B visa concept. Is it related for other countries. Can some explain me