H1B Cap-exempt to capped process

[diablo06]

Hello.

I am currently working for a university with an H1B (cap-exempt) visa. However, I am actively looking for a job in industry, which would mean I would have to switch to a capped employer. From other threads I have read, it is clear to me that in order to switch from cap-exempt to capped employer, one must re-apply for an H1B, however, it is not clear if the (hypothetical) re-application process can be done while I keep working for my cap-exempt employer with a valid visa or if I have to leave the country and wait for the visa application to be processed.

Additionally, I have a question regarding the extra amount of visas available for people with a US degree (I have a masters from a US university). Can you apply for these extra visas at any time, or do they have the same time constraint (April 1st application) as the regular H1B?

Thanks for any help.

 

[t74]

First, you may not apply. You must have an employer even with a US masters degree. The master's quota follows the same timeline as the basic quota. If the master's quota is filled, the applicants are considered in the regular quota.

You can have a petition in process for you while working in a cap-exempt position. All time in service applies towards the 6 year limit.

 

[diablo06]

Thanks, t74. Yeah, I understand I cannot apply on my own, I need an employer to do it on my behalf. However, you did answer my question about the possibility of continuing working while the petition is in progress.

As I understand, if I was to get a job offer sometime before the application deadline for this year, and my potential employer was able to submit the petition, I could continue working for my current non-exempt employer. This raises one more question: while my 797 was granted for three years starting last June, my visa will expire this summer (reciprocity). Can I renew my visa while the petition for the capped is being processed?

Thanks again.

 

[t74]

As long as you have a valid approval and are working for the sponsoring employer, you can apply to renew the visa. However, renewals are not guaranteed and may be delayed for additional processing. This may take more time than your travel plans have budgeted. If your employment with the sponsor terminates (such as your resignation in preparation of joining your new employer or by not signing your contract if that applies since many university contracts are for the academic year rather than indefinite), you will need to wait for the approval for the cap subject employer and enter at the appropriate time. Do not sign a contract that you do not intend to honor as you may become subject to damages to the employer for not fulfilling the terms of the contract.

I suggest that you review your plans and credentials with an attorney especially if a contract is involved.