Losing your H-1B job before it even starts?

The good news: You are in OPT, and learned that your H-1B cap subject petition was approved for a start date of October 1.

The bad news: your boss just told you that the company changed its mind about hiring you for H-1B. When your OPT ends September 30, you must leave your job and this company.

In the past few months, I have had a number of people contact me about being in this situation. They wonder, in particular, if they have a problem because the H-1B cap is full.

I gladly tell them, and tell you: these people, though they will not have H-1B at their current employer, nonetheless have a “silver lining”: they are already counted against the cap, and therefore ARE able to begin work on October 1, assuming they find an H-1B qualified job and then they themselves are approved for a H-1B petition. That is, the fact that the H-1B cap is full has no effect on them.

These people, once they find a job, need to provide their employer or the immigration attorney with a copy of their approval notice, so that it can filed along with the petition.

I hope this situation never happens to you. If it does, however, and your H-1B petition is still being reviewed, the important thing is that the review is able to be finished, and that it results in an approval. The worst thing that can happen is that your employer, after telling you that you will not have H-1B, then goes ahead and withdraws the petition before it is approved. In that case, you will NOT have the advantage of being counted under the cap.