How to go about H1B transfer ? Various scenarios

by Saurabh · 1,767 comments

It is a common question for H1-B worker “Can I transfer my visa to another company?”. This question can arrive after H1B Transfer Options and Scenariousworking for a company for several years, or just after landing in US, or even before flying to US. As part of this article, I will try to address this question.

First of all, there is nothing called “H1-B transfer” (i.e. legally). It is a term coined for our convenience. H1-B transfer is basically a new H1-B petition which is not counted in the quota because the applicant has already been counted in the quota once in past 6 years. So in order to approve any such petition USCIS considers two things:

  1. Did the applicant maintained the status before applying for the petition
  2. Will the applicant be able to maintain the status if the petition is approved

I will now try to tackle different situations by keeping above two conditions in mind. In each of the below scenarios, 2nd consideration can be proved by showing petitioner’s ability to pay the alien once petition has been approved. For consulting companies, this is determined by a client/project letter.

Scenario 1: Applicant has never been to US
In this case, question regarding prior status doesn’t exist because as long as you are outside of US you don’t a legal status.

Scenario 2: Applicant has landed in US and applies for transfer within 15 days of landing
Because the applicant has landed in US, s/he now has a status. However, because it has been less than 15 days, that status is not defined yet (payroll typically starts in 15 days). So one can still dodge the bullet and may not have to prove his/her current legal status.

Scenario 3: Applicant has landed in US and applies for transfer after 15 days of landing
This is the scenario where USCIS definitely wants the alien to prove that s/he maintained his/her status. Some of the documents that can be submitted as valid proof are recent paychecks (3 should be sufficient), bank statements that show salary deposits and W2.

Scenario 4: Applicant worked in US for sometime, then left for India and files the petition while being in India
This is more like scenario 3. The applicant will have to submit most recent US payslips and W2s in order to prove that legal status was maintained while s/he was in US. No proof is required for the period for the time spent in India.

So if a person needs to file a new petition through a new employer (on in raw terms wants to apply for H1 transfer), then s/he needs to think about the above two considerations and see if s/he can satisfy both of them. As long as the person is able to satisfy both requirements, H1 transfer shouldn’t be a problem – it shouldn’t matter whether you are in US or in India.


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Juderavi April 21, 2014 at 11:26 am

Hi,

My visa was stamped on Nov 2013 from Company x (MNC) and now they dont have projects in US. So i am unable to travel now.

Meanwhile i tried with a consultancy and they said with my Visa stamped with X company is fine to travel to US with the consultancy supporting docs. Once i reached US, then they will do the H1B transfer.

My question is
1) Will the consultancy (whom i will be on their payrolls) file a new I-797petition?
2) Whether i would to go for re-stamping with the consultancy name.
3)Travelling with the X(MNC) company stamped Visa and their I797 petition with the consultancy supporting docs will be fine.
4)During port of entry whether any queries will be raise as on petition was with my X comp and working with other

Reply

Saurabh April 22, 2014 at 2:17 am

Juderavi,
1. Yes, they can file a cap-exempt petition (aka H-1 transfer) for you.
2. Legally, you can use the old visa stamp for travel as long as it has not been canceled or has expired.
3. NO. Your new employer is giving you wrong advice. Do not travel w/ X’s petition unless X wants you to travel to US. If the consultancy wants to hire you, let them file the petition while you are outside US. Once that petition is approved, carry that petition and other supporting documents.
4. YES, they can question this illegal arrangement of traveling on X’s documents w/o X’s knowledge.

Reply

Dede April 11, 2014 at 10:29 pm

Hi Saurabh

I would like to know what happens in the following scenarios:

1) Is it possible for a new employer to file a cap exempt h1b petition even after old employer revoked their petition – given the person has used the old petition for one year and is staying outside US?

2) Is it possible to ‘transfer’ (apply cap exempt) an expired h1b petition that has been used for one year?

Thanks in advance!

Reply

Saurabh April 12, 2014 at 5:49 pm

Dede,
1. Yes
2. Yes

Cap-exempt petition can be filed on old petitions as long as it was approved in last 6 years.

Reply

Dede April 12, 2014 at 11:20 pm

Thanks for your response Saurabh. Will this 6 year thing be applicable even if stay out of US for more than one year? After I posted my questions here, I came across something in a forum where an attorney said in order to do a cap exempt, the petition must have been approved within past 6 years + the person should not have been outside us for more than one year.. Any thoughts?
I am referring this -http://www.avvo.com/legal-answers/h1-petition-is-expired–can-i-go-for-h1-transfer-w-885152.html

Reply

Saurabh April 13, 2014 at 11:58 am

Dede,
I don’t quite agree. It is ok for person to still apply for cap-exempt petition even after having stayed outside US for more than 1 year. If you have already found a new employer, you can check this w/ their attorney.

Reply

amit March 4, 2014 at 7:18 am

I work for Company A and they Filed H1B for me. Its approved. I have the soft copy of approved H1B petition. Hard copy is with company. Stamping is not yet done, so not entered in US yet.
I got offer from Company B they are ready to transfer H1B.
Questions –
1. Can my H1B petition can be transferred?
2. Will it come under CAP?
3. Company B says they will initiate transfer only after I will join them. If I resign from company A, can Company A revoke my H1B petition?
4. If yes, even after company A revoke my petition, can Company B file new petition? Will that be in CAP limit?

Any other suggestion….

Reply

mchokk March 14, 2014 at 10:41 pm

Hi Amit,
From the comments I understand you weren’t in US.
You fall under Scenario 1 where you never been to US .So H1b transfer cannot be done as your legal status is not valid.

Reply

tintin77 April 10, 2014 at 11:35 pm

H1B transfer can be done.
He just doesnt have to prove about maintaining a legal status because he was never in the US. Jeeez!!!!!!

Reply

Saurabh April 11, 2014 at 12:26 am

amit,
tintin77 is correct.
1. Yes
2. No
3. They can revoke the petition but B can still file a cap-exempt petition for you.
4. Yes, they can file the cap-exempt petition

Reply

Bala February 20, 2014 at 4:50 am

Hi,

I have valid H1b valid till sep 16 and resident of India. I have not travelled to US before. I can forsee now my current employer not sending me there for atleast an year. Therefore I want to explore options to switch job and use H1B. Please suggest what will be the process, if any risk involved in this. I should search employment directly in US or in India. For my spoouse also she is having H4 dependent visa. whether she will also require visa transfer.

Please help me out. So many doubts are striking my mind.

Reply

sheena February 15, 2014 at 9:41 am

I have never been on H1B in US.I got H1B approved last year from ABC employer ,But I resigned an came to US on H4.
ABC employer has revoked my H1B.Can a new employer use my H1B and file for H1B transfer even if it is revoked.

Reply

Kumar February 13, 2014 at 12:16 am

Hello,

I am currently on H1B and working for indian based IT company.. last month I was offered job in an US based company. I accepted the offer and currently my visa transfer in process. I have a family here so visa transfer is being done for my dependents as well. Now in case I change my mind and dont join the company of which I accepted the offer then based on some blogs I understand I can still continue to work with my current employer as I have checked offer details and there I can see the clause of at-will termination from both sides however I am in doubt if visa of my dependents will still remain valid as well if I continue to stay in current company after H1/H4 transfer is approved? Please advise.

Reply

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