Non-cap H1b & Cap H1b queries !!!

[KK12]

Hello all,

I am currently on F1-OPT status (expiring February this year, no STEM). I have two job offers - one is cap H1b and another is non-cap H1b.

1. I know two employers can file H1b petition for you but I would like to confirm if both cap H1b and non-cap H1b can be filed in my case (keeping in mind April 1 is approaching and it's already February)? Is there enough time for filing and having a NON-CAP H1b processed/ approved and then filing CAP H1b in April?

2. Is processing time same in both cases? Is it usually 2-3 months or more/less?

3. Let's say my NON-CAP H1b is filed in March (with premium processing, my employer has not yet talked about PP though) and it is approved in March/April, if I am correct, my status will be changed to H1b, is that correct?

4. Do I need to get it stamped to start working or can I start working immediately once it is approved and can go for stamping later?

5. Meanwhile, when my CAP H1b petition is filed by another employer on April 1, if my status has already been changed to H1b by that time (because of non-cap H1b filed in March), would there be any question on my current status? Would my cap H1b petition still considered same as a regular cap H1b petition?

6. Do I need to inform this employer that I have non-cap H1b petition filed for me by another employer?

7. Are there any risks involved especially concerning rejection of cap H1b? Is there any other thing that I should be aware of?

8. What if my status is not changed to H1b (non-cap) by April 1 but let's say it gets changed sometime in April/May, would things still be same as far as my CAP H1b petition is filed?

9. Can I keep working for employer 1 on non-cap H1b till September and then start working for employer 2 from October 1 on cap H1b if I get picked in the lottery? Is it legitimate and a safe possibility?

10. Or shall I choose one of these and not put myself into all this mess.

My non-cap employer has no issue whenever I leave them, they just need a 30-day notice period. I might be totally wrong in all my facts and assumptions that I mentioned above but I would really really appreciate if you guys could help me understand all this better so that I could make a wise decision.

Thank you all for your time and valuable suggestions. God bless !!!

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[lisaanderson]

Hello all,

I am currently on F1-OPT status (expiring February this year, no STEM). I have two job offers - one is cap H1b and another is non-cap H1b.

1. I know two employers can file H1b petition for you but I would like to confirm if both cap H1b and non-cap H1b can be filed in my case (keeping in mind April 1 is approaching and it's already February)? Is there enough time for filing and having a NON-CAP H1b processed/ approved and then filing CAP H1b in April?

2. Is processing time same in both cases? Is it usually 2-3 months or more/less?

3. Let's say my NON-CAP H1b is filed in March (with premium processing, my employer has not yet talked about PP though) and it is approved in March/April, if I am correct, my status will be changed to H1b, is that correct?

4. Do I need to get it stamped to start working or can I start working immediately once it is approved and can go for stamping later?

5. Meanwhile, when my CAP H1b petition is filed by another employer on April 1, if my status has already been changed to H1b by that time (because of non-cap H1b filed in March), would there be any question on my current status? Would my cap H1b petition still considered same as a regular cap H1b petition?

6. Do I need to inform this employer that I have non-cap H1b petition filed for me by another employer?

7. Are there any risks involved especially concerning rejection of cap H1b? Is there any other thing that I should be aware of?

8. What if my status is not changed to H1b (non-cap) by April 1 but let's say it gets changed sometime in April/May, would things still be same as far as my CAP H1b petition is filed?

9. Can I keep working for employer 1 on non-cap H1b till September and then start working for employer 2 from October 1 on cap H1b if I get picked in the lottery? Is it legitimate and a safe possibility?

10. Or shall I choose one of these and not put myself into all this mess.

My non-cap employer has no issue whenever I leave them, they just need a 30-day notice period. I might be totally wrong in all my facts and assumptions that I mentioned above but I would really really appreciate if you guys could help me understand all this better so that I could make a wise decision.

Thank you all for your time and valuable suggestions. God bless !!!

1. A cap-subject H-1B can be filed at the same time as a cap-exempt H-1B. They do not conflict.
2. Since your OPT expires this month, then it’s advisable to file the H-1B Cap Exempt H-1B immediately so you can keep working. Remember, it needs to be approved before you can start working. You cannot work while it’s pending because your OPT has already expired. You may want to consider Premium Processing. PP gives you 2 advantages- it allows you to work sooner and your status will change to H-1B. Once the H-1B is approved, you can immediately start working- you don’t have to go for stamping.
3. Now we come to your Cap-subject H-1B. If the other H-1B is already approved or even pending, your employer’s attorney should be informed. The petition needs to be filed as an H-1B extension, not change of status. It’s very important that your attorney understands that the h-1B still needs to go through Cap but you’re in H-1B status.
4. If on April 1, your first H-1B is still pending, the 2nd H-1B can still be filed as a change of status. It gets a little complicated legally but ultimately should have little effect on your ability to remain in the U.S. If the 1st cap-exempt H-1B gets approved after that, you can begin working.
5. Yes, you can keep working for Employer A until Sept. 30 and then start with Employer B on Oct. 1.
6. File both – don’t just pick one. There is no guarantee that you will make it through the lottery. Filing the cap-exempt petition will allow you to remain in the U.S. and continue working. If you don’t make it in the lottery, you can try again next year.
For more details about H-1B’s and the H-1B Cap, here is a good resource: http://www.visapro.com/resources/default.asp. It may be a good idea to speak with an attorney to sort all of this out and get a clear explanation.

[KK12]

1. A cap-subject H-1B can be filed at the same time as a cap-exempt H-1B. They do not conflict.
2. Since your OPT expires this month, then it’s advisable to file the H-1B Cap Exempt H-1B immediately so you can keep working. Remember, it needs to be approved before you can start working. You cannot work while it’s pending because your OPT has already expired. You may want to consider Premium Processing. PP gives you 2 advantages- it allows you to work sooner and your status will change to H-1B. Once the H-1B is approved, you can immediately start working- you don’t have to go for stamping.
3. Now we come to your Cap-subject H-1B. If the other H-1B is already approved or even pending, your employer’s attorney should be informed. The petition needs to be filed as an H-1B extension, not change of status. It’s very important that your attorney understands that the h-1B still needs to go through Cap but you’re in H-1B status.
4. If on April 1, your first H-1B is still pending, the 2nd H-1B can still be filed as a change of status. It gets a little complicated legally but ultimately should have little effect on your ability to remain in the U.S. If the 1st cap-exempt H-1B gets approved after that, you can begin working.
5. Yes, you can keep working for Employer A until Sept. 30 and then start with Employer B on Oct. 1.
6. File both – don’t just pick one. There is no guarantee that you will make it through the lottery. Filing the cap-exempt petition will allow you to remain in the U.S. and continue working. If you don’t make it in the lottery, you can try again next year.
For more details about H-1B’s and the H-1B Cap, here is a good resource: http://www.visapro.com/resources/default.asp. It may be a good idea to speak with an attorney to sort all of this out and get a clear explanation.

Thank you very much for a prompt reply.

3. When should the CAP employer be informed that it has to be H1B extension, a few days before they file the petition or a month before when they are preparing all the documents? Will there be any additional document required? Will there be any change in LCA because of that?

Should the employer's attorney be informed only if NON-CAP H1b is already approved or even if it is pending? Because like you mentioned in point 4, if it is pending, the CAP H1b petition will be filed as change of status. Am I understanding things correctly?

I have a couple of more questions that I would like to ask.

A. If I get picked in the lottery and find a better company (a for-profit/ cap company) before October 1, when will be the good time to initiate H1b transfer? Is it safe to do it before October or after you start working in October for your previous employer?
B. I have heard something like concurrent H1b that is usually obtained by professors. Can it happen in my case as well? Let's say - if in future, I would like to keep non-cap job as part-time and cap-subject as full-time, when shall concurrent H1b petition be filed and by whom (if that's a possibility)?

Thank you again for answering my queries. I highly appreciate your feedback.

[lisaanderson]

Thank you very much for a prompt reply.

3. When should the CAP employer be informed that it has to be H1B extension, a few days before they file the petition or a month before when they are preparing all the documents? Will there be any additional document required? Will there be any change in LCA because of that?

Should the employer's attorney be informed only if NON-CAP H1b is already approved or even if it is pending? Because like you mentioned in point 4, if it is pending, the CAP H1b petition will be filed as change of status. Am I understanding things correctly?

I have a couple of more questions that I would like to ask.

A. If I get picked in the lottery and find a better company (a for-profit/ cap company) before October 1, when will be the good time to initiate H1b transfer? Is it safe to do it before October or after you start working in October for your previous employer?
B. I have heard something like concurrent H1b that is usually obtained by professors. Can it happen in my case as well? Let's say - if in future, I would like to keep non-cap job as part-time and cap-subject as full-time, when shall concurrent H1b petition be filed and by whom (if that's a possibility)?

Thank you again for answering my queries. I highly appreciate your feedback.

The first thing the attorney will want to know is what status you are currently in. If the H-1B is approved, then you will need to inform the attorney that you are in H-1B status. I would not recommend delaying informing the attorney about your cap-exempt application and its status. You should keep the attorney informed.
It’s safer to wait to do a transfer until after October 1. There has been pushback from USCIS regarding transfers filed before October 1.
Generally, a cap-exempt H-1B holder can file a concurrent H-1B for a cap-subject company without going through the cap. Most professors who have concurrent H-1B’s have not gone through the cap. You will need to speak with an attorney regarding a strategy to do for what you are proposing.