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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108635
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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H1- approved with Employer A. Got new job and Employer filed

Customer Question

H1-B approved with Employer A. Got new job and Employer B filed H1-B transfer and case status showing "Case Was Recieved". Started working for Employer B on OPT which ended on Aug 8. Now in Cap gap. what will happen after Oct1 2016. can I apply for Opt extension in cap gap
Submitted: 10 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello! My name is***** and I am a licensed attorney with more than 14 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

You will need to work for Employer A and generate a few paychecks and then do a transfer to B. Why? Because your H-1B was chosen under the cap with A. B cannot make use of that cap number until it is activated and that happens if you go to work for A or get H-1B visa stamping outside of the U.S. I know this is not convenient to you, but the issue is the cap. Go to work for A, then when you get the approval for B, go to work for B, but only after you have gone to work for A and have generated a few paycheck stubs as proof.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, please click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Customer: replied 10 months ago.
My H1-B has been approved with Employer A and my EAD was valid till Aug 8 2016.I joined Employer B while i'm on OPT july 25th2016. And on July 10th 2016 Employer B applied for H1-B and I-797c has been provided by USCIS.
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

I understand that, but I think you know that you cannot join B in H-1B just like that or you wouldn't be here asking about it, would you?

Customer: replied 10 months ago.
B said that I could join the company once they recieve filing reciept
Can I now apply for Opt extension and work for B
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

And obviously you aren't sure which is why you are here asking, correct?

Customer: replied 10 months ago.
I'm sure they have contacted their legal department before giving me the start date and before I join the B.
Customer: replied 10 months ago.
Can I apply for OPT STEM Extension in CAP-GAP and still work for Employer B?
What is my status from Oct 1st if the Employer B's H1-B filing is still under processing? and what should be done for that?
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Well, unfortunately, that's not correct. IF you were already IN H-1B working for A, then B could file an I-129 for you and as soon as USCIS received the I-129, you could go work for B, but because you are NOT yet on H-1B with A, you have to wait. You would need to speak to your Designated School Officer (DSO) about your OPT with B, but you cannot work for B in H-1B until you activate the H-1B that you got through A. So please review my previous answer.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see the stars or smiley faces, please click on my name and they should come out. Also, we do NOT finish just because it says "Rate to Finish" or something like that. Your question does NOT close and you can continue to ask questions without additional charge on the same question thread even after you leave a positive rating. Thank you for your understanding!

Customer: replied 10 months ago.
But I already started working for the Employer B what should I do?? Im worried now :( :(
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

But you said you started working for B in OPT because you are in cap-gap, correct? It is a job related to your field?

Customer: replied 10 months ago.
it is related to my field.
I started working for Employer B from July 25th 2016. My EAD ended on Aug 8th 2016.
Customer: replied 10 months ago.
From Aug 8th 2016- Sep 30th I'm on Cap-Gap.
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Exactly. You should be covered by cap-gap. So you should be ok, but on October 1st, you need to go to work for A. Then a few paychecks later, if B's petition is still pending, you can go work for B, though the safer thing to do is wait until B's petition is approved.

Please don't forget that positive rating. I only keep mentioning it because if you can believe it, about 30% to 40% of people on this site don't leave a positive rating and since I am not given a salary to be here, it's as if I spent my time responding for free. So you can understand, that's like working 40 hours per week, 5 days a week and not being compensated for every Friday and most Thursdays. That's the only reason I keep mentioning it. Sorry if it is a bother as it is not my intention. If you don't see the stars by my name, I think all you have to do is click on my name and they will come out. Thank you for your understanding.

Customer: replied 10 months ago.
What if I apply for OPT 24 month extension during the Cap - Gap and continue work for Emp B rather than going to Employer A.
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

You could, but you would have to do a number of things. First, check with your DSO about the timing to make sure you have enough time to do it. Second, you would have to have A withdraw the H-1B before October 1st because if not, it automatically goes into effect. You could try "leap-frogging" which would be leaving the U.S. before October 1st and coming back into the U.S. on F-1 student visa after October 1st, but you have to make sure that your OPT and F-1 visa are valid, so again, you REALLY need to discuss everything with your DSO.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Customer: replied 10 months ago.
Since B already filed for H1-B if A revokes it then whats the point in transferring my H1-B to B. Spoke to my DSO and he said I could apply for STEM EXtension before CAP-GAP expires which is Sep 30th 2016.
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

You brought up something else. I explained to you how you could transfer from A to B. I guess that doesn't seem to work for you because for some reason you just don't want to work for A. So you asked if you could apply for OPT 24 month extension and I said that you could, but you have to have A withdraw their H-1B and if A withdraws their H-1B, yes, you could get 24 OPT extension, but you couldn't transfer from A to B because you would no longer have A. And you would have to have B apply for a new H-1B April 1, 2017. Sorry, but you cannot have your cake and eat it too. So either you will need to work for A on October 1st, or go for H-1B visa stamping outside of the U.S., or you can have A withdraw H-1B and try for OPT extension, but then B will have to apply April 1, 2017 under a new cap. I'm trying to keep you out of trouble. I hope you appreciate that.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

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