Can Org B file H1 in Jun13, aftr I hv approvd H1 receit for Org A by May13?

I know this is a complicated question - I will try to explain in detail here.

I (MBA graduate) have a full time job on OPT and my employer (Employer A) is going to file H1B visa on April 1st 2013 as a Business Analyst).

I am still trying to find a job ( that I want - Market Research Analyst). So I am trying to find out how early or late can Employer B file for my H1B visa or H1B transfer (dont know what would it be). My OPT expires in July 2013 ( I am already aware about the extension during visa procedure).

So assuming by May 1st week ( with premium processing) I get my approved H1B visa receipt for ( Employer A). If around that same time ( April - June) I find employer B who is willing to sponsor visa, will he be applying for a new visa? or will it be called as a transfer?

If its a new visa, will the quota has to be open for me to apply. ( meaning USCIS should be still accepting H1 B applications) ? When will I be able to start working with Employer B? But then I will have two visas and how will USCIS handle this? ( I already know I can work only for one employer at a time on H1B)

If its a transfer, then when will i be able to start working for employer B? Or will I have to wait till Oct 1st to get my visa stamped and then file for H1 transfer from employer B to work with them?

And will my job position make a difference in the change of employers to USCIS - one is Business Analyst and other would be Market Research Analyst.

Hoping some expert/ immigration lawyer can answer such a complicated questions with the perfect answer.

Thanks you in advance for answering.


Once A’s petition has been approved, B can file a cap-exempt petition for you (this is loosely referred as H-1 transfer). Once B’s petition gets approved (it will also be subject to Oct 1 start date), you can start working for B from COS approval date.

As for change in job duties, you need to be qualified for each position at the time of filing. As long as that it satisfied, it should be fine.

Thank you so much Saurabh for your response. So after reading more about what Cap-exempt petition is it means that once I am counted in that quota for the transfer to B I wont be counted as new application. Correct? Thus can apply even if the cap-exempt of 20,000 is closed. Correct?
COS means Change of Status approval date, which will be given by USCIS after they file it for B. Correct?

The job positions are both clear for me, I wouldn’t have issue there. Just one last question - If my OPT is expiring on July 16th 2013. The COS date has to be before July 16th right for me to be able to work till Oct 1st ( with that extension). Correct?
Thank you so much again. Things are really clear to me now.

You are correct about the cap-exempt petition. Once the person has been counted in the cap (i.e. have an approved petition), subsequent petitions are not subject to cap.

COS approval date can be based on A or B’s petitions. You will have to talk to A and B, whether they plan to file w/ COS or not.

As for the last question, you will can continue to stay and work on the basis of cap-gap. As long as your H-1 is filed w/ COS w/ start date of Oct 1, you become qualified for cap-gap which basically extends your status until Oct 1 or H-1 denial date (whichever is earlier). As soon as the petition is filed, let your DSO know about it and they will update the SEVIS record w/ cap-gap information.

Perfect… Thank you so much you really seem to know a lot :). Got all my doubts cleared. I will remember to mention the COS to the employers. Oh that just reminded me to something else.

Can I get a job like on March 30th ( for say with employer B directly, I am extensively searching for jobs in parallel) and file for H1 in April immediately. I am curious because, the project (employer A) I am in started in Feb and ends in April. ( I dont wish to quit in between). So wondering if I could get the employer B job in this month let them file for H1 but dont start working with them until May 1st. ( i know its too much to ask for, but USCIS will need me to be working with the same employer who files my visa right). Also, I need those paystubs to show while filing H1.

Thank you very very much again for all your insights. It just cleared my all confusions and tensions :slight_smile: Really really appreciate your time.


There are 2 things you need to work out here - arrangement w/ employers and maintaining legal status. You will have to discuss w/ employers when you can start working for them prior to Oct. As you will be on OPT, you can work for any employer and just need to inform the DSO about the change in employment.

From legal’s perspective, you need to remain unemployed (only 90 days of unemployment allowed on OPT) and need to have a H-1 petition pending w/ USCIS in order to get the cap-gap.

If your H-1 petition is filed by A, and you leave them by May, then they can withdraw the petition. This means, B needs to file your petition in April as well to get the cap-gap. It is not mandatory for you to be working for B at the time of filing. When people file for H-1 from outside US, they are at times not even employed w/ the H-1 sponsor. So it’s not a requirement that you should work for B at the time of filing.

Alright. This makes complete sense. Now I just have to hope to work this out with my new employers (wonder who they will be) avoiding complications. Thanks a tonne again for all your answers. I will probably need more help from you when all these “ifs” will be real situation with me. I just wanted to know in advance so that I am prepared for answers and have a background.
Thank you very much again Saurabh :slight_smile: Good luck on your endeavors.


Thanks Meenal :slight_smile: Good luck w/ your H-1 processing.