How to go about H1B transfer ? Various scenarios

by Saurabh · 1,787 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.

{ 1787 comments… read them below or add one }

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meghal October 6, 2014 at 3:54 am

Hello,

i was on OPT with company X and the same company filed my H1B, but i got a very good offer from company Y before my H1 started and i resigned 3 days after my H1 started on oct 3rd. as my LCA was filed by company Y but i didn’t receive any receipt, will i be able to work for Company y? Also, In this scenario what can be done.

Please advice

Reply

Ashher September 6, 2014 at 4:44 am

Hi Saurabh, my H1B petition got approved on June 2010 and visa got stamped on January 2011 in India But i didn’t travel to USA on that visa and changed job in India. Then My Employer canceled the visa when i left that organization. Now i am with another IT organization in India.

Can someone please provide me information if I am still eligible to qualify under 6 year Cap Exempt rule and my current (or any) employer who is in India (Having registered office in USA also) can file my visa using my previous petition of 2010 as a cap exempt case? This would be great help for me if you can provide me this information as time is running out now for me :(

Thanks,
Ash

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Debojyoti August 6, 2014 at 9:48 pm

I am on a valid H1B visa stamped till 03-Mar-2016. The petition is also approved till the same day. Currently I am in USA. I am working for company ‘A’.Recently I got a offer form company ‘B’ and they started my H1B VISA transfer process. I have not resigned from my current company ‘A’. Company ‘B’ has filed my H1B VISA under premium processing on 04-Aug-2014. I have to travel to India on an emergency on 07-Aug-2014. I have no plans now to resign from company ‘A’ once I come back from India on 07-Sep-2014.
Will there be any problem when I travel back USA on 07-Sep-2007 and what documents do I need to carry.

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Achu August 4, 2014 at 5:59 pm

Hi,

I am working for company “X” from last 1 year and 6 months. I travelled to India and came back in april. I have failed to submit my leave end form. So, the may month pay stub was not generated. But I got the June month pay doubled including may month salary, but the pay dates are only for june. From then I have received july month pay slip also.

I got the opportunity for company “Y”, I need to submit last 2 or 3 months pay stubs for H1 transfer.

Will this be a problem.

Do all the pay slips should contain same pay rate.

Do I need to wait for another 20 days to get the next pay check so that I will have 3.

Please reply.

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Saurav July 14, 2014 at 6:57 am

Hi Saurav ,
Please guide me on below request. Thanks in advance .
Query :
I have an approved H1B petition till 2016, If i quit the company who sponsored it , then would my new employer have to file a new H1B or it is just a H1B transfer .Currently i am in india and my visa not stamped .
Please Please please Reply .

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damodar July 7, 2014 at 8:11 pm

Hi saurab
I have valid h1b till september end(3 months).if h1b transfer is applied by other company will i get only 3 months validity or will get more.
Thanks

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Navd June 11, 2014 at 12:38 pm

Hi,
I got my H1-B approved for 3 years from employer A, I am currently on OPT STEM extension valid till Dec,2014. The H1-B status begins from Oct 1st, 2014.
Now I have a better offer from employer B, who wants to file a H1 transfer for me but also wants me to start working from next week for him.

question is 1. Can I start working for employer B ?
2. Do I need to wait till the transfer Process is done, even though the H1 has not started yet?

appreciate your help and suggestions.

Thanks

Reply

EFS May 28, 2014 at 4:28 pm

Dear Saurab,
I applied for h1b visa from company A, they filed my petition and got approved in 2013, at the interview with the visa officer they gave me 221g yellow, submitted all the documents and after several months the consulate sent my case back to USCIS. After all this wait I decided to look for another company and do the transfer, now company B decided to transfer my visa but they are asking me for a sign statement of why I never got the visa stamped, I never mentioned the 221g to the company B. How this can affect me now? If I say the company A never came back this will impact the transfer with company B? Or I should tell them about the 221g?
Thanks

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neil May 20, 2014 at 8:36 pm

I am working on H-1B through company A valid till 2016. I accepted offer from company B and they just filed H-1B to USCIS (decision pending). Now, I also receive offer from company C and I am more interested in going for company C.

-Is it possible for company C to file H-1B using only company A’s pay stub and H-1B receipt?
-Can company B withdraw petition while it is in review? If so, will that impact to my current job or petition being filed with company C?
-If I get H-1B approved from company B before company C file for H-1B then do I have to work for company B before I go to company C? or can I just work with company A and go directly to company C?

Please let me know.
Thank you,

Reply

Sravan May 8, 2014 at 6:31 am

Hi Saurabh,

I have a valid H1B VISA and I never been to USA.

Through a consultancy X, I have transfered my H1B and I got the new petition. Now I have to go for VISA interview again in India.

Here my question is what are the possible questions at consulate at the time of interview. Please suggest.

Thanks,
Sravan

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XYZ July 1, 2014 at 10:57 pm

Hi Sravan,

You are really done very good job and hopefully the consultant X will treat you properly in USA. don’t worry about the visa interview, hopefully it would be easy.

-XYZ

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linus May 8, 2014 at 2:59 am

Hi Saurabh, i am in a tricky position. I have a approved H1B petition with company A, but no VISA yet. Now Company B contacted me and said that they will file for a transfer/new petition. I have few questions on this:

1) If company B files a new petition for me and send me for VISA, what happens to the status of the petition filed by company A.
2) Say if i go to VISA stamping using company B’s petition and for some reason the consulate issues a 221(g). Meanwhile can i go for the VISA stamping again using company A’s petition (Assuming company A’s also want me to get stamped) . Will i face any issues here?

Thanks,
Linus

Reply

Harika May 7, 2014 at 6:03 am

Hi Saurabh,
My current company has applied h1 for me and it got picked in lottery, now my husband works in US, i wanted to buyout h1 from my current employer in India and travel to US on dependent Visa, will my h1 still be valid in this scenario??

Reply

H1-B Premium Processing Fee May 5, 2014 at 5:01 am

What is the real advantage of applying H1 Transfers with H1-B Premium Processing filing with additional processing fee if not there is no actual guarantee time limit for approvals.

Reply

Ranga May 2, 2014 at 11:56 pm

I am working for Company A and they Filed H1B for me. Its was approved and got stampped. so far as not entered in US.
I got offer from Company B they are saying ready to transfer H1B.
Questions –
1. Can my H1B petition be transferred to company B wihile in india?
2. Any possibility of revoking my H1B visa from employer A.
3. If so, transfer is possible to company B?

Reply

Abi April 30, 2014 at 4:52 pm

Hi Saurabh,
I am in a confused situation now. I was on h4 and got my h1b approved in dec 2013.
Got a project in feb for two months(i.e., feb n March) . Again i am on bench from april. Employer said he will run the pay roll for april, and if i don’t get any project by end of may he will revoke my h1b(I am yet to get a project). My question is , in the worst case scenario if he revokes my h1b what will be my status? Is there any chance I can reapply for my h1b cap exempt? or can I try for h1b transfer bcoz i get a lot of calls for full time employment. I had a signed the offer letter which states that I have to be with this employer for 12 months, is this agreement valid? if so, when i join another employer what will happen? Appreciate your reply! Thanks in advance.
Regards
Abi

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Confused what to do next April 28, 2014 at 11:36 pm

Hi Saurabh,

I have a valid visa till sep 2015 issued in year 2012 from a indian MNC .Last year I have visited my client location for around 9 months and willing to switch my H1B job over there but due to some personal reason I have to come back to india now my employer is willing to send me back in January next year which means I would have only 9 months of visa validity available but I want to go to USA well before that but at the same time I would like to come back after 2-3 year back to india to work in some MNC here and I know if I will switch my job my current MNC is not going to hire me in any case.

My question to you is that if I will get an offer from USA how will I be able to convince my employer to give me my experience letter without servicing the 2 months bond period as I heared that experience letter is a must to get a job in indian MNC(just to let you know that my current employer is the first employer I ave started working with and I have got a work ex of around 4.3 year with him till date )

Reply

Saurabh April 29, 2014 at 9:25 pm

Confused what to do next,
I don’t know if experience letter is mandatory in Indian MNCs or not, but in US it is not a must. Even when you don’t have experience letters, there are other ways to prove your work w/ the old employer – letter from ex-manager or ex-colleague or payslips to show your tenure.

Reply

Confused what to do next April 29, 2014 at 9:53 pm

thanks for ur response Saurabh,

Really i am quit surprised to know that a letter from a ex-colleague is going to work .i am sure my manager is not going to provide me any experience letter at all and when it comes to salary slip i am not sure if my indian salary payslip is a enough proof to get a job in US.it it ?

Also can you please let me know which particlaur technology i should be learning to get a stable career in USA ? I am currently working in mainframe techonolgy (cyberlife product) and i heard that it is getting used in only in big usa comapny who are willing to hire only permanent employee rather than H1B candidate.

Reply

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

Prasad May 5, 2014 at 6:50 am

Hi Bala, I am also in the same situation… H1B expiring in sept 15. I do not forsee any option in my company. Did you by any chance found any luck ? Please share it could be helpful.

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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