H1B Transfer Options and Scenarious

How to go about H1B transfer ? Various scenarios

In Apply H1B Visa by Saurabh2033 Comments

It is a one of the most common questions for H1-B workers that “Can I transfer my visa to another company?”. This question can arrive after working 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.

Legally, is there something really called H1B Transfer ? 

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 H1B quota because the applicant has already been counted in the quota once in the past 6 years.

What does USCIS Look for when any applicant goes for a H1B Transfer ?

So in order to approve any such petition USCIS considers two things:

  1. Did the applicant maintain the status (US Visa vs 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.

What has been your experience ?

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Comments ( 2,033 )

  1. Sri

    Hi Sourabh,
    Can you please update on the above doubts of mine when you are free. This is kinda urgent as I am looking out for alternate options.

  2. AK

    Hi Sri,
    I am also in a similar scenario. The only challenge that i have observed is that the employers in US are willing to interview the candidate ONLY if the person is present physically in US.
    Some people have given suggestions which I am NOT willing to follow as they are generated out of points that are NOT true (like telling the employer – I am in US etc.)

    Also haven’t been able to find an employer in India who is willing to do the transfer !!!!

    Thanks
    AK

    1. Sri

      AK,
      Do you have any confirmation on this.
      Can we travel to USA with the stamped VISA(in my case valid till Sep 2018) and approval from new employer or do we need to go for stamping again ?

  3. Sri

    Hi Sourabh,
    I have a similar scenario and need your suggestions. Please advice.
    I am with employer A, an MNC and my H1B got picked in the lottery last year(2015). I got it stamped through my employer A in Dec 2015.
    Now I see that there are no US projects in near future in my company. I don’t want to waste time continuing in this company until I get a US project.

    I would like to travel to USA and am looking for employers who are ready to transfer my H1B.
    I have the following questions.

    1) Can i get it transfered while I am in India(Note: My H1B is already stamped with my current employer A).
    2) If some company B initiates the transfer process, should I go for stamping again ? Or can I travel with the existing stamping for the new employer B ?
    3) If I have to go for stamping again, will there be any risks involved in this ? Will they cross question on why I have shifted and why is this transfer ?
    4) If I have to go for stamping again, what happens if my H1 is rejected at VISA interview for company B ? Will my previous H1 stamped by current employer be valid ?

    Can you please let me know and suggest me on how I should be going with it. I am in a pathetic position at the moment and have no other option apart from going for a VISA transfer. I would want to make sure that it will not create any problems for me.

    Regards,
    Sri

    1. administrator
      Saurabh

      Sri,
      1. Yes
      2. No new stamping required as long as A’s visa stamp is valid and has not been marked as canceled in the passport
      3. No issues. They would evaluate the case using B’s documents and not worry why you left A
      4. It would remain unimpacted

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