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Comment by neubyr | Hacker News Reader

My H1B application is in lottery despite already having an H1B visa. Here's why -

There are two types of H1Bs -

  * cap exempt: For non-profits, public/state universities , public university hospitals and national labs.
  * cap subject: For profit making companies.

According to visa rules, an applicant is subject to cap-based system if he/she hasn't been counted in the cap in last six years. You need to find an employer who will apply for your H1B in April and then wait for you until October. Not many employers will hire such candidate. So it's extremely difficult to transfer job from cap-exempt H1B employer to cap-subject H1B employer unless you have been counted in the cap-based H1B system before.

Moral: Don't take your first H1B job with a non-profit (Khan Academy??), national lab or public university.

You would think you may get some benefits by working for a research or non-profit organization, but sadly that's not the case.

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So are you saying you've been on H1B visa for 6 years of more as of now? This is a great point, can you please share?

hes just applying again for H1B the second time after his 6 years expired for the previous time he was granted ( 3years reg + 3 years extension). Thats normal logic

His comment created confusion with "cap exempt" vs "cap subject" logic.

Murthy folks have explained this in better manner: http://www.murthy.com/2013/01/14/moving-from-cap-exempt-to-c...

Seems like there are many like me..!

Nope, I am on a cap-exempt H1B for last 2-years.

Technically H1B visa is never transfered, but it's always a new application when you change employment. In 'normal' cases, people start with a cap-based H1B (with some profit making company) and then change employment to another profit making company. Their new H1B application isn't transfered, but it's not subject to any cap as that applicant has been already counted in the cap. The rule says that, "an applicant will not be counted towards cap if he/she has been subject to cap in last 6 years". Most cases fall under this category and hence it's commonly perceived as 'H1B transfer (without going through cap again)'.

If one starts with a non-profit H1B, then he/she needs to go through a cap-subject process to join a profit making company. While it's not impossible, it's extremely difficult to find an employer who will apply for your H1B in April and wait until October 1'st (when new FY begins) for you to join the company. There is a way out here - you can start working before October if you do concurrent employment at both places, but again that's difficult to achieve (both employers should agree as well!).

IMO:

   * the wait time from April to October should be eliminated
   * allow work as soon as visa is approved

This will reduce the application rush and companies can pursue good candidates all round the year.

Also, keep in mind that not all H1B holders will enter US. It can be a carrot stick to curb attrition as an H1B holder employee won't switch a company in the hope of being 'on-site' some day. Although it's expensive to use this tactic nowadays as H1B fees are high!!

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