H-1B Cap: Lottery Winners and job changes before October 1

If you are chosen in the H-1B cap lottery, your employer must file an I-129 petition to complete the process; and it is a best practice (in my opinion) to stick with that employer through October.

Winning the H-1B cap lottery is not easy! The odds seem to keep getting worse.

If your case is chosen in the H-1B cap lottery, this gives your sponsoring employer the opportunity to proceed to the I-129 petition filing. The "winning lottery ticket" is not transferable to another employer. If you lose your job before the employer is able to file the I-129 petition, that is very unfortunate.

If you leave your job voluntarily before the employer is able to file the I-129 petition, that's just cuckoo clock crazy.

And remember, if you were registered in the lottery by EMPLOYER A; and you were not chosen in March - there could be more lotteries this calendar year which is certainly a very good reason to stick with EMPLOYER A if you can!

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If you get your H-1B cap lottery case chosen, and the employer completes the I-129 petition process so your petition is now approved, sometimes you may be tempted to get another job and transfer your H-1B.

My view on this situation is that H-1B cap lottery winners should stay with their sponsoring employer (H-1B petitioner) through at least October 1 when the H-1B takes effect. I base this on my understanding of risk in immigration law.

You see, I have been successful, and I suspect many other immigration lawyers have been successful in getting an H-1B approved as a "change of employer" even before October 1 for a cap case lottery winner; but I do not think that past success is a GUARANTEE of future success. It is a proposed action clearly with some risk.

So the times when I have done it, the situation was such that the H-1B candidate lost his (or her) job. It is very different if you lose your job and you are trying to make lemons into lemonade and keep your H-1B alive.

If you have a perfectly good job but there is a potentially better job awaiting you; then in my view you are inviting unnecessary risk by leaving your H-1B employer before October 1.

What is the risk?

If your initial H-1B employer withdraws the H-1B petition approval (as it should per the regulations); and USCIS takes the view that the H-1B withdrawal means you were never counted against the cap; then you might lose your H-1B winning lottery ticket by changing employers too soon.

And shame on the employers - some of whom are very large and well-known - who are encouraging people to do this. Those same employers aren't going to take ownership of the chaos that may be created by someone who thought they had an H-1B cap lottery winning ticket and lost it.

This is akin to employers who entice H-1B workers to leave who are in the middle of PERM and tell them 'oh, we will start PERM for you right away' and then things happen and it actually takes 2 years to get back to where they were.

In US immigration law, there are MANY gray areas. Sometimes, when a person has no choice - it makes sense to press forward into a gray area; but don't walk into a gray area when you don't have to walk into a gray area. That's my view of risk management.

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If you are good enough to have another job offer now, you are good enough to have another job offer in October, with an H-1B locked in.