Is this a correct method for University -> Corporate move?

E

energydude

Registered Users (C)
Hello, I'm new to this forum. I read several people's posts that in order to go from a University to Corporate employer one has to go through the quota.

But, I saw a website by a lawyer called Stephen Jeffries who says that such a transfer is possible as long as it is submitted as an "extension". I would like to know the opinion of participants and Mr. Rajiv Khanna on this. Thank you in advance.

The link is

http://www.o-1eb-1j-1waiverlawyer.com/services.html#12

(scroll way down for H1-B cap issues under hot topics)

Or,

I'm quoting verbatim below:

"The limited amount of H-1Bs available each fiscal year poses a wide range of problems to U.S. employers and may have lasting effects on aliens. Many of our physician clients face some unique challenges regarding the H-1B cap upon completion of their residency or fellowship or when they attempt to enter the job market by accepting a private practice position (for example, in the context of someone moving from an employer that is cap exempt to one that is not).

In such cases, a “cap gap” problem may arise if the USCIS improperly interprets INA 214(g)(6), which states that an alien who ceases to be employed by an exempt employer and has not been previously counted should be counted the first time the alien is employed by a non-exempt employer. Our opinion, is that INA 214(g)(6) does NOT block such a transfer as long as it submitted as an application to extend status. To the contrary it is our opinion that the numerical restrictions only apply when new H-1 status is sought, that is when the applicant is applying for a change of status to H-1B from a different nonimmigrant status such as the H-4 or B-2 or when consular notification is requested rather than extension of H-1B status.

The basis of our view is a precise reading of the statutory language of INA 214(g) and numerous explicit directives issued by USCIS. Specifically INA 212(g) holds that the numerical limitation only apply to those who are being “provided” H-1B status, not to those already in such status and seeking its extension.

Therefore, it is our belief that a physician who is finishing a residency or fellowship and going into private practice (not cap exempt) MAY apply for a change in previously approved employment so long as the physician applies for an extension of his H-1B from within the US (not through consular processing)."
 
Last edited by a moderator:
It says it's their opinion, but it looks to me very twisted view.

Just reading the following provision in INA 214 as below, I have no idea how it is possible to interpret as mentioned in that web site.
No matter how i read, it is saying if one quitted exempt employer and has not been counted toward numerical limitation, s/he must be subject to numerical limitation when s/he applied for non-exempt H1.

http://www.uscis.gov/lpBin/lpext.dl...lb-3681?f=templates&fn=document-frame.htm&2.0

INA 214(g) (5) & (6)

(5) 2/ The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who 2d/--

(A) 2e/ is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; 2e/

(B) 2e/ is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization; or 2e/

(C) 2e/ has earned a master's or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.



(6) 2/ Any alien who ceases to be employed by an employer described in paragraph (5)(A)shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph(1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
 
Last edited by a moderator:
I'm not a lawyer, but perhaps this is what Mr. Jeffries is trying to say:-

(g)(1) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)-

(A) 2/ under section 101(a)(15)(H)(i)(b), may not exceed--
(i) 65,000 in each fiscal year before fiscal year 1999;
(ii) 115,000 in fiscal year 1999
(iii) 115,000 in fiscal year 2000;
(iv) 2/ 195,000 in fiscal year 2001;
(v) 2/ 195,000 in fiscal year 2002;
(vi) 2/ 195,000 in fiscal year 2003 and
(vii) 2/ 65,000 in each succeeding fiscal year; or

If one is very literal about it, someone who holds an H1B from a university is not being "provided status" on transfer to corporate as he already has H1B status. Nor is he being issued a visa at the time of approval. Therefore numerical limitations shouldn't apply.

Also, Jeffries is saying that 214g(6) (in red above) doesn't apply if the petition is filed as an "extension". I don't pretend to understand this, but perhaps that brings some new equation into play.

Once again, I'm not a lawyer, I just saw this on the website. But I think if this lawyer has put it up, he must have successfully executed some cases...
 
Last edited by a moderator:
What they said is that transfer or extension ususally does not come under quota, therefore, if the case is treated as extension/transfer in the US, it overrides what 214(g)(6) says and can be exempt from quota.
I understand their point, but.... it seems a little farfetched. Considering why there is H1 cap for industry, allowing H1 holder under cap exempt to freely transfer to industry does not make sense.


http://www.uscis.gov/graphics/publicaffairs/questsans/H1BChang.htm

Q2: Are there new exemptions to the H-1B cap?

A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

Institutions of higher education;


Related or affiliated nonprofit entity, or


Nonprofit or government research organization.
AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption.
 
Last edited by a moderator:
GotPR: I understand that from the point of view of the "spirit of the law" it does not make sense.

However, consider the following too:

Normally people take OPT after school and use that to work in industry for a full one year. This gives them the opportunity to make an uninterrupted transition to H1, as the employer files when the quota opens. Henceforth they can change jobs as and when needed, without going through the cap.

On the other hand, suppose your first job after school is in academia. Then any industry employer who wants to hire you has to make a hiring decision almost one year in advance, because you (a) don't have OPT to cover the intermediate period and (b) your "new" H1 will not be valid before October 1, 2007.

Thus, someone going in for academic employment is placed at a clear disadvantage as compared to someone going for industry employment as a first job, in terms of his career options.

That does not seem fair or in the spirit of law either. In fact it amounts to undue discrimination in my opinion. To make the system fair for academic workers, the USCIS should do one of the following:

(1) Give every new academic worker the option of being counted under the cap when the university files his/her H1, so that they have the same future flexibility as industry H1s

(2) Or, a grace period similar to OPT should be provided to people moving from academia to industry

In the absence of that, it is perfectly legitimate to use literal readings to find loopholes, as the law as it stands is unfair.
 
Can anyone else please also comment on this?

The lawyer I mentioned above says that he has had excellent success in filing this way and there have been no revocations either.

If this works, then it seems to me it is a boon for people stuck in academic H1s who want to transfer to industry.
 
You must log in or register to reply here.
Top