Using first-H1B petition for different employer

[hou2hou]

Background:

I work at a software services company A in India. My H1B lottery got selected this year in April 2022. My company has applied for I-129 and it is approved. Stamping not yet done (Unknown Consular processing date). Meanwhile I got another job offer from US company B in USA.

Questions

1. Since my application is approved would my H1B be assumed to be counted in H1B cap this year and later company B can apply for H1B under cap exempt category?

2. If I resign now can company B apply for another I-129 immediately based on I797 approval?

[Kalpesh_Dalwadi]

@hou2hou

Since my application is approved would my H1B be assumed to be counted in H1B cap this year and later company B can apply for H1B under cap exempt category?

There is 50% chances of getting cap-exempt approval from company B as your H1B is not considered activated till visa is stamped amd/or you worked for the H1B sponsoring employer before changing to another employer.
That said USCIS has approved cap-exempt petition even if H1B wasn’t activated so I would say try your luck as you dont have to lose anything.

@hou2hou

If I resign now can company B apply for another I-129 immediately based on I797 approval?

I would suggest not to resign until your petition is approved with company B, your visa is stamped and you are ready to travel unless company B is telling to start the job in your home country first before they can file your H1B.