Question: Can a postdoc with University H1b start to work in a company before OCT after he files for cap-subject H1b from company on April?
Facts: Conservatively, many University H1B postdocs wait till OCT to work, no matter the new H1b pending or approved. Some agressively start working upon filing, based on lawyers' suggestion, with no problem.
This s a gray area and cause different interpretation.
Attached are some interpretations from Murthy lawer on the possibility of transfer.
It seems to me based on AC21 portability law, University H1 holder can work in company after H1 filing, but has to stop working once H1b is approved with starting date on OCT (the reason is when a new H1 approval notice has been issued, now the applicant has a determined date for the new job). But this is a strict reading of the law. On a loose reading of the law, the applicants may receive a delayed approval notice and may still work upon a pending case. This does not really violate the rule if he continues working upon H1B approval. That's why many lawyers aggressively say YES for university H1b holders.
You may find some relevant answers from PJIANG's blog, if he has any previous interpretations.
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Links:
Chat User : Can a person with an exempt H1B start working if his non-exempt visa under the masters quota was approved for the fiscal year 2007 - before October 1, 2007?
Attorney Murthy : Under a strict reading of AC21, a person is allowed to start working for the non-exempt H1B employer simply upon filing of the new H1B for the cap-subject employer, even if the earlier employer was a cap-exempt H1B employer. However, upon the USCIS approving the H1B petition with a start date of October 1st, one is required to stop working until the start date of the new H1B petition, if the approval contained the I-94 card attached at the bottom of the approval notice. Although this matter is not clear under the law itself, the USCIS, in various meetings, has confirmed this interpretation under the wording of AC21, and until the USCIS issues regulations, it seems like a viable option to consider.
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Chat User : I am on a university H1B (quota exempt). Is it better / easier to apply for a new H1B visa (U.S. graduate quota) or to transfer my H1B if I want to take a new job in the industry?
Attorney Murthy : At the present time, per the USCIS count, there are still H1B numbers remaining for the U.S. masters or higher degree quota, so if one is switching from a cap-exempt H1B employer to a cap-subject H1B employer, the employer should file the new H1B petition immediately, since the USCIS predicts that the H1B cap will expire before the end of this month (January 2006). Either way, upon filing the new petition from a cap-exempt H1B employer, AC21 law seems to allow one to start working for the H1B cap-subject employer, but that person must stop working upon the approval of the H1B petition with a future start date like October 1, 2006. In other words, while the H1B petition is pending, H1B portability would appear to protect an individual, allowing that H1B candidate to work legally under a strict reading of the AC21 law. The USCIS has agreed to this interpretation in various national and regional AILA conferences.