Job change after 3 yrs of waiver on H1 -- problem

gondalguru

Registered Users (C)
Hi All

I started my J1 waiver - H1b job in south texas (under conrad 30 program) - August 2003. My first H1b was cap exempt at that time based on my approved waiver.

I am planning to change job after completion of my waiver on H1b with a private employer. Will I have problem getting new H1b as cap has been reached for the upcoming fiscal year? Is H1b transfer after J1 waiver cap exempt or no? Did any one had a similar situation?

I have few friends who did change their jobs after completion of waiver and no body had any problem. I asked my lawyer and she told me its ok to change but I am still skeptical about this cap / cap exempt issue.

All the help and inputs are welcome.
 
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I612

Registered Users (C)
Most people that switch from cap exempt to non-exempt use the employed "at" clause. If the private group works out of a nonprofit hospital and the hospital has any sort of teaching affiliations then your H is cap exempt. Quite a few places meet this criteria.
Teaching affiliation doesn't need to be very strong. Nursing students rotating there will do it.
 

Statin_doc

Registered Users (C)
I have heard that switching or extensions on an approved H-1B Visa are cap exempt. You are already here, not applying for a brand new H-1B! You might want to do some 'Googling' yourself, also.
 

gondalguru

Registered Users (C)
Thanks statin / 612

I tried to google a lot but could not find any answer. H1b switching is subject to cap if it is from Exempt to non exempt employer if the first H1b was cap exempt.

Employed AT and Employed BY is different but it might work as the job I am planning to take is in university hospital with teaching affiliation (also happens to be in MUA). The position is not employed by hospital but by a private hospitalist group.

I also have approved NIW based I 140 , pending 485 and EAD. Can I start my new job on EAD and then file I 140 amendment later?

Has anybody done I 140 amendment before? What is the procedure to do that?
 

gondalguru

Registered Users (C)
Found some more information from Ingber and Aronson

Regarding the H1b change issue I found the following information from Ingber and Aronson

http://www.ingber-aronson.com/article/2005-conrad.htm

specifically

"" CURRENT OPEN AND UNRESOLVED ISSUES IN THE CONRAD WAIVER PROGRAM"
"" 5. Ongoing Exemption from the H-1B Quota Cap

The most recent amendment to the Conrad program exempts from the H-1B cap a physician who has received an IGA waiver and then changed into H-1B status.[48] The exemption from the H-1B cap clearly applies at the time that a physician changes from J-1 to H-1B status in order to assume the job with the petitioning employer. However, the plain language of the statute also seems to state that this H-1B cap exemption attaches personally to the physician, thereby covering subsequent changes in employment after fulfillment of the mandatory three-year service obligation. The United States Citizenship and Immigration Service (USCIS) needs to clarify this issue in order to allow section 214(l) physicians who have completed their three-year obligation to change employers even if the H-1B cap has been met.""

INA § 214(l)(2)(A); 8 USCA § 1184(l)(2)(A) (2005).

Any thought and comments???
 
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posmd

Registered Users (C)
Options

It looks like you have a couple of options here.

you could extend your H1b based on your new job. I don't think you are subject to the cap as you already have H1 in hand, if you are that anxious about it all you have a $1000 solution to it, called premium processing, just continue in your current job and file H1b prem. processing for the new one and move after it is approved within 2 weeks.

You also have your EAD and can file an ammended 140 and change to EAD/AP status. In view of the slow movements of PDs, if you are from India, that might be your best bet as it gives you complete independence from your employer who is unlikely to then look at you in a way like I am doing you a favour so you owe me! Just a thought.

Either is fair game I would think. Keep us posted. With severe PD retrogression for India, a lot of us will no doubt have to find patchwork immigration solutions for now, hence we are all interested.
 

hadron

Registered Users (C)
The position is not employed by hospital but by a private hospitalist group.

I believe you would still be cap exempt if you are providing your services at a university affiliated hospital.

And yes, taking the job on your EAD and amending your I140 would be an option (don't know whether you need an updated letter from the health department for this).
 

GMC92

Registered Users (C)
Change jobs after completion of ji waiver.

I am a physician working in underserved area and I am due to complete waiver
in July07. Due to retrogression, India EB2 PD 1/05 ,I am extremely frustrated. My husband travels every week and then drives 3 hrs in treacherous conditions to come home. I want to give up my Pd and Gc process but want to find a new job on H1B after completion of waiver. Can I do it safely on H1B or is it necessary to only to a non-profit/HPSA location? Experts POSMD/Hadron or anyone with similar experience, kindly answer !
 

hadron

Registered Users (C)
I want to give up my Pd and Gc process
What is your GC based on ? If it is an NIW, you could go to a different underserved location and keep the process going.

Can I do it safely on H1B or is it necessary to only to a non-profit/HPSA location?
Nonprofit/university and HPSA are two different issues.

HPSA only has a bearing on H1b quota in the setting of waiver jobs.

Teaching jobs are cap exempt.

There is a question of whether your cap exemption from the waiver job follows you to a regular job, but I don't think that that is the case.
 
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