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Non-profit Cap Exempt H1Bs who filed cap subject H1Bs

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If you are presently working under a Cap-Exempt H1B (Not-for-profit, Government) and an Employer filed a Cap-Subject H1B with a start date of October 01, you may begin working with the new Employer as soon as you receive an H1B receipt, if the CAP-SUBJECT H1B was filed as an H1B Extension.

What is a Non-Profit Cap-Exempt H1B?

An H1B filed by the Employer who is not subject to the annual H-1B quota. These Employers can file H1Bs all around the year, and there is no limit. The following are the types of Employer who fall under this category.

•    A not for profit institution of higher education

•    A not for profit entity related or affiliated to an institution of higher education

•    A not for profit research organization or a governmental research organization

FAQs

I am a Systems Analyst employed by a cap-exempt university in H-1B status. A for-profit employer filed a cap-subject H-1B petition on April 01, 20.., requesting an employment start date of October 1, 20.. along with an H1B Extension. In this situation, can I work with Cap-subject employer upon receiving an H1B Receipt Notice, say from April 25, 20…?  

Yes, you may begin working as of April 25, 20… The portability provisions do not grant H-1B status on the beneficiary of the H-1B petition. However, H1B regulations provide the benefit of continued employment authorization and is not connected to the actual status of the worker. As such, an H-1B worker described above, whose entire period of employment authorization will be covered with a valid LCA.

You may commence H1B employment with a new or concurrent employer notwithstanding the fact that the prior H-1B employment on which Portability is based is H1B cap exempt employment and the new or concurrent employment is H1B cap-subject employment.

What are the risks?

It is important to note that it may be possible that the H-1B petition filed by the new employer may be denied, at which point employment authorization ceases upon denial.

This fact is especially important to an H-1B non-immigrant moving from cap exempt H1B to cap-subject H1B employment. If you were to port to the new employer upon the filing of the cap-subject H-1B petition, you are allowed to do so. If for some reason you do not receive a cap number, as was the case this year when the cap was reached on the first day of filing, your work authorization would cease. If you are using the portability provision under these circumstances, you should be aware of this risk.

Conclusion: You may start the new job upon the filing of the cap-subject petition, and may continue to be lawfully employed by the cap-subject entity under the H-1B portability provisions until new H-1B numbers become available on October 1.

 



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