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Immigration Issues/H1B Cap exempt -> Cap subject

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Question
QUESTION: Hello Sir,
Here's my case :

- I work for a cap-exempt employer
- Never been subjected to H1B cap
- If a cap subjected employer offers me job and files my new H1B visa in April2013 when the cap opens, can I start working once I receive the receipt.
- is it true that if I get approval before 1st Oct, I have to leave the job and rejoin from 1st Oct ?

ANSWER: Hi,

Unless you work concurrently for the cap-subject employer (in other words, you work for both the cap-exempt and cap-subject employer at the same time), you must wait until the validity period noted on the H1B approval notice (likely to be Oct. 01, 2013) in order to commence work for the cap-subject employer. If working concurrently, you can work for the cap-subject employer with just the receipt notice, and the H1B petition through the cap-subject employer can be filed anytime.

Incidentally, you are not required to join the cap-subject employer if you choose to continue to work for the cap-exempt employer exclusively: www.h1b1.com/concurrent.htm



---------- FOLLOW-UP ----------

QUESTION: Sir,
I was going through the AC21 doc
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998

and on page 7 it talks about the H1B cap exempt portability.

What I understood was, if at the time of filing I am working with cap-exempt employer and my cap-subjected employer files my H1B, I can work for him if the cap numbers are available. In sense I won't be 'ceasing' my cap-exempted employer before I get the USCIS H1B receipt. Once i get the receipt I can work for cap-subjected employer(Given that I do carry a risk of going out of status if my petition is denied)

Answer
Our opinion as indicated in our initial response remains unchanged, and we had taken the memorandum into account. I strongly recommend that you continue to work concurrently for the original cap-exempt employer throughout the entire validity period stated on the H1B approval granted through the cap-subject employer if you wish to avail of the cap-exemption.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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