H1B Revoked, Withdrawal, Termination – By Employer? USCIS? Oh My! Options

In H1B Visa by Guest AuthorUpdated : 525 Comments

by Emily Neumann, Attorney at Law

“Help! My employer is going to revoke my H1B visa. What do I do now?” is a common call that I receive at Reddy & Neumann, P.C. H1B Revocation certainly will impact the beneficiary of an approved petition, but first, a little lesson on the proper terminology.

H1B Revoked – What does it mean?  By USCIS or Employer ?

An employer CANNOT revoke an H1B. Only the immigration service, which is USCIS, can take that action and the regulations specify exactly when revocation is required in 8 CFR 214.2(h)(11). There are only two circumstances in which the immigration service will automatically revoke an H1B:

1)      The sponsoring employer goes out of business; or

2)      The sponsoring employer files a written withdrawal of the petition.

When an employer says they will revoke a person’s H1B, all they can really do is request withdrawal of the petition. Once the immigration service ( USCIS) receives a written request to withdraw, it will lead to the automatic revocation of the petition. Also, it is important to point out that, although it is harsh, an employer is actually required to notify the immigration service when employment is terminated (either by the employee’s resignation or the employer’s decision to fire).  Visa holders may feel that an employer chooses to notify the immigration service out of spite, but they really have no choice. According to 8 CFR 214.2(h)(11)(i)(A):

“The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility… If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition. “

What can an employee do when you know in advance you will lose  job or be terminated from employment  on H1B Status?

In the best case scenario, the employee will be given advance notice of a termination and withdrawal. If this occurs, the employee should immediately begin making arrangements to either obtain a new job offer or look to other possible visas to remain in the country. Once a termination of employment occurs, the H-1B worker is immediately out of status; there is NO grace period.  Therefore, whenever possible, action should be taken to file an H-1B petition for change of employer (i.e. H-1B transfer) or to file a change of status to another visa type before the termination occurs. Once the H-1B transfer or change of status is filed, if the employer later notifies the immigration service of the termination or requests withdrawal, it generally would not impact the pending application or the immigration status.

Updated : As per new USCIS rule that was effective from Jan 2017, employees get up to 60 days of grace period to find alternative employment.   Read H1B Grace Period 60 Days Ruling info.

Lost job on H1B status without any prior notice, laid off, or sudden termination – What can you do?

“But what if I can’t find a new job in time or my employer does not provide advance notice?” This is a tough situation, but not impossible. The most important consideration is to act quickly. The longer you take to decide on your next action, the more likely the outcome will require you to leave the country (at least temporarily).  In the event of a sudden termination, if you are able to find a new job quickly enough, you may still be able to obtain the approval of an H-1B transfer while you remain in the country by filing the application “nunc pro tunc.” I should point out that if you a file an H-1B transfer after you have stopped working for the current employer (i.e. you are not in status at the time of filing), then you cannot start working for the new employer based on the H-1B transfer receipt notice.  Therefore, I usually recommend filing in premium processing and also explaining the situation. The “nunc pro tunc” gives the immigration officer discretion to approve the transfer and issue a new I-94 card even though you were out of status at the time of filing. This is more likely to occur if the transfer is filed quickly; a long delay in filing will likely lead to an approval without a new I-94 card. In that situation, you must exit the country, but can re-enter with a valid H-1B visa stamp. You get up to 60 days grace period as per the ruling from 2017, so if you act quick should be fine.

What if you cannot find job immediately after losing job, when on H1B status or in Grace period ? What are your options ?

If the prospects for a new job offer are not looking good, you may look into changing status to another visa type, such as H4 (if your spouse also holds an H1B) or F1. Again, this should be filed before you go out of status. If another visa is not an option, it may be best to leave the country temporarily while you continue to look for another job. A new employer can file a new H-1B petition for consular processing (since you are outside the country), but you would not be subject to the quota since you were previously counted. There are some exceptions, so you should definitely consult with a qualified immigration attorney to confirm whether you are subject to the cap or not. Also, I should point out that there are other types of revocations not discussed here. The main goal of the article is to help those in H1B status who may be facing termination of employment.

Thanks to Emily for writing the guest article for us. Please reach out to using her using her for any immigration issue, she is a highly qualified immigration attorney and can help you with your case !

————————————-About the Author————————————–

Emily Neumann practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law ( immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.

   

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Comments ( 525 )

  1. Sree

    I worked for employer A till March 6th 2016 and on 7th March i received the transfer receipt and joined with my new employer. My old employer usually runs my payroll on March 15th and he refused to run payroll for the month of February citing reason i left the company before payroll is being run. He also threatened me saying he will revoke my H1B effective from 31st of January. I would like to understand whether a back dated revocation of visa is possible or not. My transfer with new employer is in RFE status. Old employer has revoked my H1B and uscis sent him approval on 16th of September 2016. please suggest what should be done in this situation.

  2. GeeGee

    Hi,
    I got laid off (without notice) on a H1B on Oct.14th, and while researching options, I came across this on the USCIS website :

    1. Laid Off H-1B Employees With Advance Notice – What if you are an employee in H-1B status and you receive advance notice that you will be laid off before your validity period ends? Can you change employers?

    USCIS Response: Prior to being laid off, another qualified H-1B employer may file a Form I-129, Petition for a Nonimmigrant Worker, on your behalf with USCIS. In order to change employers without having to depart the United States, the I-129 petition should have been filed prior to the termination of your job and you must have been maintaining valid H-1B status. If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer.

    2. Laid Off H-1B Employees Without Advance Notice – What if you are an employee in H-1B status and you are laid off with no advance notice before the end of the validity period? Can you begin working (or port to) another job with a different employer?

    USCIS Response: An H-1B nonimmigrant is admitted to be employed by the sponsoring H-1B petitioner. If the employment ends, this condition is no longer satisfied and the individual is no longer in a lawful nonimmigrant status and may be subject to removal proceedings. Therefore, the terminated H-1B nonimmigrant in this scenario may not be able to port to another employer, subject to certain discretionary exceptions.

    Should I give up hope of finding a new job in USA, because the chances of my new H1B petition being approved are almost nil…?

  3. Vikas

    Hi Saurabh,

    My H1B was approved in Jan 2016 then stamped in May 2016 from Emp A. But I couldn’t join them due to some personal issues. But in meantime Emp B got my petition approved in Sep 2016. Now Emp B is also not responding. If Emp A and B both withdraw my petition, will I be cap exempt in future transfer? I never travelled to US.

    Thanks,
    Vikas

  4. Rinesh karthi.N

    Hi Saurab,

    H1B was picked up in the lottery but they asked for RFE documents. Before the deadline [Oct 14th 2016] we were not able to submit the client end letter. Only by Oct 17th we received the client letter. Meanwhile i came to know that the petition is withdrawn. What are the next steps ?

    1. administrator
      Saurabh

      Rinesh karthi.N,

      If the employer withdrew the petition, then that’s the end of it. Only ray of hope is that you convince your employer to withdraw the withdrawal notice and then USCIS agrees to it. In addition, USCIS should agree to accept client letter post RFE response date. Probability of all this happening is on the lower side.

  5. Rajat

    Hi Saurabh;

    I was selected in FY 2015 Lottery and My petition was approved in June 2015 and valid until Sept 2016 [Expired now].Later during stamping I got Admin processing which never got resolved due to poor response from employer.In August 2016 I found another US Based employer willing to file cap-exempt H1 for me using this petition.But when I told them everything about my H1 History they preferred to wait until USCIS issues NOIR to my previous employer.
    In mean time my previous employer filed for Petition withdraw and it got approved and they have sent me withdrawal acknowledgement they received from USCIS.The notice states “YOur request to withdraw your petition for a non-immigramt worker (I129) has been noted for the record.The withdrawal of this case is a final action for which there are no appeal or motion rights as per Title 8 code of Federal Regulations .However the withdrawal does not preclude filling of a new application or petition with a new fee.

    Now I just wanted to know am I still left with cap-exempt status or the petition is now of no use?.I am keeping some hope with the statement “However the withdrawal does not preclude filling of a new application or petition with a new fee.”.-What does this really mean?.Kindly help me understand my H1 Situation.
    I am in India and never traveled to US on this petition.

  6. Raghu

    Hi,

    I am presently in India. I am planning to resign my job. but My employer is demanding me to return the petition to get my relieving letter. Since I don’t have any Offer from US company yet.
    is it necessary to have the Old petition?
    Does it belong to the organization which sponsored me H1B?
    Can I insist on keeping it with me?

    Please suggest me on this.

    Thanks in Advance.

      1. Mohammad

        Hi saurabh,

        I was working with A company last year and they filed my H1B petition and it got picked. Later, they were out of projects/work and so they lay off me. After a month or so i got placed in B company and i am still working with this B company.
        Now, my H1 got approved and company A still doesn’t have any suitable position for me and they are working on taking me back in the company.
        My questions:
        The company B i am working in is providing me salary which is less than $5k/month. I heard that on H1B Visa salary must be >=$5k.(Is that true?)
        Also, company A is ok doing C2C if they did not find suitable position for me.
        According to my knowledge, H1 has already started from October 1(true?) and I haven’t received any documents from USCIS, yet.
        And, can i do H1B transfer as soon I receive documents or is it mandatory to get pay stubs for certain period?
        Please clarify my questions and help me out of this weird situation.

        Regards,
        Mohammad

        1. administrator
          Saurabh

          Mohammad,

          Your salary should be at least what’s mentioned in the LCA. The number may or may not be more than 5K pm depending upon the role, location etc.

          Rest of the question is not clear to me. Which employer has H-1 petition approved/filed for you?

          1. Mohammad

            Hi Saurabh,

            Thanks for your response.

            My H1 was filed by A company and it got approved. Now, i am working in B company and i am getting less than 5k/month salary.
            Is it possible to do H1 transfer from A company to any other company right now or is it mandatory to wait for certain period of time?
            And, how does C2C works?

  7. yunzhang

    Hello,
    I have a question and really appreciate any comments/suggestions.
    I started working for company A using F1 and got H1 approved in June. I then received an offer from company B, who decided to apply for a H1 “transfer” for me as soon as my H1 become valid. We have agreed that the transfer should be made on 10/3 (Monday) and at the same time I should submit the “two week designation notice” to company A saying that 10/14 (Friday) will be my last day.
    Indeed the new H1 petition was submitted early Oct but there was a missing signature. And it was re-submitted on 10/11. Even though the petition was using premium process there is a chance that we don’t receive the receipt number by 10/14, which is my last day at company A. I was told that I cannot start working for B until we have got the receipt number from USCIS (even some others say that Fedex tracking is enough).
    So my question is, if I don’t receive the receipt before 10/14, the end day of my employment in company A, will I be out of status? Is it legal if I remain unemployed between 10/17 (Monday) and whenever I start working for B? (Say will it impact the H1 application or other future petitions, such as green card??
    Thank you very much in advance,
    10/13

    1. administrator
      Saurabh

      yunzhang,

      As long as the petition is received by USCIS (confirm through FedEx), you are allowed to work for new employer.

      In worst case scenario, there is a gap of few days in your case, it should not be an issue. Even in the long run it should not be an issue. Keep print outs of FedEx tracking to show it was filed and received timely.

  8. Rakesh

    Hi ,
    I have got an big issue,
    I came to US on Jan 27th 2016 due to some reasons My Employer didn’t run my 2 Months(Feb & March) Pay stubs so I joined new employer on April 2016 they initiated transfer in regular processing and we are waiting for receipt. Now My Current employer initiated Premium processing on Aug 16th 2016 and they got RFE . They were few questions but mainly concentrated on Previous employee details.

    Mean time My Ex Employer revoked my H1B on July, 2016. My queries are

    1) RFE states that need to provide Ex – employer pay stubs but unfortunately I don’t have those.
    2) In case if I don’t provide Pay stubs will my visa get rejected?
    3) My Current employer saying they will put a complaint on my Ex employer about pay stubs to Labour.

    Can someone tell me, what will be USCIS decision on this?

    Thanks
    Rakesh

    1. administrator
      Saurabh

      Rakesh,

      If the old employer is not running the payslips, then let them know that you plan to complain to DOL about the H-1B rule violation. Hopefully they would issue the payslips. If not, follow through on it and complain to DOL about it.

  9. Dave

    Hello,
    I am an F-1 Student and am on my OPT-Extension. My employer has filed
    H1-B and got an “RFE” and responded to it and while in process my project has been ended and they have withdrawn my H-1B and status has been updated.
    1) Now i have a new employer and am i eligible to transfer or submit a petition in this case to re-gain my H-1B ?
    2) If yes, what is the process ?
    3) If no, can use same receipt number for my new H-1B filing or do i need to go for another lottery?

    1. administrator
      Saurabh

      Dave,

      If the original H-1 was withdrawn before it was approved, then you are not eligible for cap-exempt petition. You need to go through the lottery again.

  10. Rakesh

    Hi,

    I am working with company A with H1B visa. As per the company A policy they have only short term assignments. So I am working US on H1B visa for last 8 months without US Paystubs. Now I got an opportunity with company B and they already filed my transfer petition with USCIS and I got the transfer petition number (Premium processing). I resigned from company A. Now my current employer (company A) said that if I didn’t serve notice period of 2months, they will revoke my H1B visa. So I have few questions here:

    1. As my H1B transfer petition is already filed with US CIS and having receipt number, is it possible that my current employer can still revoke my H1B visa ?
    2. My H1B transfer Petition is filed on Sep 9, so how much time it will take to complete the process ?
    3. As it is filed with US CIS, can I start my working with my new employer ?
    4. What is the process to revoke H1B visa and how much it will take time for my current employer to do this ?
    5. If my H1b visa transfer is approved with employer B, can employer A still have the right to revoke my H1b visa ?

    Please help me on the above questions.

    Thanks in advance.

    1. administrator
      Saurabh

      Rakesh,

      What do you mean there are no US payslips? Are you not getting paid in US? Are you getting paid in India?

      1. They can withdraw their A petition but it shouldn’t impact the outcome of your transfer process.
      2. Under regular processing, it could take 4-6 months. PP option is also available
      3. Yes, you can start working for new employer as soon as USCIS receives the transfer package
      4. The employer has to write to USCIS asking to withdraw the petition as they no longer employ you. USCIS typically processes it within few weeks.
      5. They can do that anytime – prior to transfer, during transfer, after the transfer. It is their petition.

      1. Rakesh

        Thanks Saurabh.

        Yes I am working under India Payrolls and they are paying Per Diems here that too in INR only (provided apartment and rental car). I am not getting even a penny in USD, all I am getting in INR.

        1. administrator
          Saurabh

          Rakesh,

          This is a pretty bad set-up, both for you and employer. You are not maintaining legal status in US as you are not getting paid as per the LCA. You should consult an attorney about this as it impacts your short and long term immigration plans.

  11. Sambit

    Hi,

    Seek advice with my current situation:

    I’m on H1B and have 1 year validity left, my spouse is also on H1B. My kid is dependent against my H1B. All of us are currently in the US, but in different locations.

    1. If I resign and before the last day of employment file for Change of Status to H4 against my spouse’s H1B, can my employer get my H1B revoked? Can I change my status back to H1 (H1 transfer by a different employer) after few months?
    2. Do I need to “file” COS before last day of employment OR need the COS “approved” by the last day?
    3. Does my kid need to change his H4 from my H1B to my spouse’s H1B? What is the process for that?

    Thanks!!

    1. administrator
      Saurabh

      Sambit,

      1. Employer can withdraw H-1 as per their will. You will still be considered as cap-exempt for future H-1 filings. So COS back to H-1 in future is possible.
      2. COS needs to be applied prior to last day of employment.
      3. Yes, he also needs to move to spouse’s H-1B. I am not 100% sure but I think it will also be COS application. Talk to spouse’s attorney.

  12. Prabha

    Hi,

    I am currently in the US on H1-B. I might have to leave to India due to unavailabity of project. My visa is still valid for a 3 months.If i quit my job in india and go for another job
    1. what actions can my employer take on my visa? like cancel/withdraw etc.
    2. If my employer cancels/withdraws my visa. Will my future employer be able to file H1-B cap exempt?
    3. If i get a new job after a 3 months .i.e., my visa expired. Then will my future employer still be able to file H1-B cap exempt?
    4. In both the above cases, will i be eligible for any other visa categories like L1, B1 etc.
    5. For what duration can H1-B be applied cap exempt?

    Thanks

    1. administrator
      Saurabh

      Prabha,

      1. They can withdraw the petition. They can also withdraw the visa, but for this they would need physical custody of your passport.
      2. Yes
      3. Yes
      4. Yes
      5. Usually you are cap-exempt for 6 years from the date you left US. However, off late USCIS has been going easy on this requirement.

      The thing to watch out for is missing payslips. I think you didn’t get paid (I make the assumption as you didn’t have any projects). This may cause an issue when applying for cap-exempt petition or other petitions in future.

      1. Prabha

        Hi Saurabh

        Thank you for your valuable comments. I do have my pay slips. I have been working in the US for a couple of months now. I will have to return back as the project got scrapped and no more projects readily available

  13. Sandesh

    Hi Saurabh,

    My H1B was revoked on June, 2016. My future employer has initiated transfer in regular processing and we are waiting for receipt. My queries are

    1) Am I out of status when since June?
    2) Do I get the 180 days grace perioid?
    3) If my new H1B transfer goes through do I have to re-enter US for new transer? My visa expires in 2018

    1. administrator
      Saurabh

      Sandesh,

      1. If you are not getting paid and are inside US, then yes you are out of status.
      2. No
      3. If new petition is approved with consular processing then you have to leave US and return on that petition.

      IMO, you should leave US immediately as your transfer petition was filed long after your H-1 was revoked. Did you discuss this w/ new attorney?

  14. Palani

    Hi Saurabh,

    For my case, I have got an offer from Employer A in 2015 and he filed my H1B Petition on 2015 and that peition got selected in the lottery. And After receiving the approval notice from USCIS, suddenly employer A revoked my petition and said that, that project will no longer run. In the mean time I have got an offer from another Cap-Exempt Employer (Non Profit Employer) on Nov 2015 and I came to US by Jan 2016 with that Cap Exempt Employer H1B and till now I am working with that employer.

    1. Since I am currently working with CapExempt Employer, If this project gets over in future, then I have to find another job from another capExempt ( Non Profit Employer), or else I guess I have to leave the country. Instead can I use my revoked H1B petition from Employer A (regular employer) and transfer that to some new employer (Another Regular Employer)?. Currently I am having I-797C for the revoked petition.

    this transfer is possible ?

    Thanks in Advance.

    1. administrator
      Saurabh

      Palani,

      As the cap-subject petition was first approved and then revoked, you should still be able to use that petition as reference to get another cap-exempt petition through a for-profit company.

      1. Ivan

        Hi Saurabh,

        I’ve seen cases on different forums where people were saying that USCIS has been rejecting new H1B applications filled with cap exempt based on previously approved petition (old petition was filled with consular processing) because H1B was never activated. Do you know if having a H1B visa stamped will help this, even without admission to states on H1B status?

        Thanks!

  15. Jha

    Hi Saurabh,

    Yes my new employer know about this at the time of filing.

    As new employer was my vendor(layer to provide this job) who signed the contract with old employer. Once old employer failed to provide joining date and keep holding me as they were communicating with USCIS than only new employer initiated the H1B transfer.

    Your ans is inline with my understanding. So I already sent wh4 to DOL about old employer.

    Thanks
    Jha

  16. Jha

    I am on H1B and employer stopped generating pay stub from 12/5/2015 through Feb-2016 as I was on bench. After that final settlement done in Mid Feb. Later I transferred my H1B to new employer and now RFE came and asking for pay stub of that period. So how to respond the RFE?

    1. administrator
      Saurabh

      Jha,

      You didn’t maintain legal status during that time. Did your new employer know about this at the time of filing? Maybe ask the old employer for back wages and tell them that you would report to DOL if they don’t oblige w/ H-1 rules and regulations.

  17. Andrew

    Hi,

    I currently have two H1b approved for two bona fide jobs. I just sent a letter to Company A that I’m not longer available to start employment on October 1. Could you explain the process for withdrawing the H1b. I understand that it is their responsibility. If they don’t withdraw, could it affect my other H1b with Company B? If I never signed an actual contract with Company A, will there be any ramifications from me not showing up to work?

    Thanks in advance.

    1. administrator
      Saurabh

      Andrew,

      It is up to A whether to withdraw the petition or not. Even if they don’t withdraw it, it won’t impact your other/future petition(s).

  18. lakshmi

    Hi

    I had my H1B approved in oct’2014. I came to US and worked with my employer from June 2015 to August 2016 and i came to india and employer sent me termination of employment and informed to USCIS withdraw the petition
    and not yet revoked by USCIS.
    what are options wanted to comeback

    1.Is it possible to look for different employer for H1b transfer being in home country
    2. Can i travel with same visa until it get revoked and look for different employer for h1b transfer

    Appreciate your suggestion. Thanks!
    lakshmi

    1. administrator
      Saurabh

      Lakshmi,

      1. Yes
      2. You need to find another employer and have them file cap-exempt petition for you. They need to submit old approval notice as proof of having made through the cap and your US payslips are proof of maintaining legal status. Once approved, you can travel to US and work for that employer. If the visa stamp from current H-1B employer has expired, then you need to appear for stamping again.

          1. lakshmi

            Hi Saurabh,

            On Aug 23rd my employer sent me termination of employment mail and on 30 th of august i can see the revocation notice as below

            1. if i find the new employer , how long it will take to h1b transfer and New I797 doc and what is the procedure /documents are required for H1b transfer,

            Do i need do stamping again to enter US (Current employer visa validity upto aug 2017 )Please guide me

            Revocation Notice Was Sent
            On August 29, 2016, we revoked the approval of your case, Receipt Number WACXXXXXXXXXX, and mailed you a revocation notice. It explains the reasons for our action. Please follow the instructions in the notice and submit any requested materials. If you do not receive your revocation notice by September 12, 2016, please go to www.uscis.gov/e-request to request a copy of the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address.

            Regards
            lakshmi

          2. administrator
            Saurabh

            Lakshmi,

            They need to file LCA (1-2 weeks) and then file H-1 cap-exempt petition for you. PP option is available (15 calendar days), while RP would take few months. If RFE is issued then it would take longer. The process and documents is similar to the initial H-1 petition. The only additional documents required are copy of previous H-1 approval notice, and payslips for the time you were inside US on H-1.

            No new stamping is required as long as the old visa stamp is still valid. When entering US you would have to show the current stamp and new petition to the PoE officer so that they issue I-94 accordingly.

          3. lakshmi

            Latest pay slip is mandatory? or previous month pay slip is fine. employer is not sent me latest pay slip and not credited the salary yet..

            Regards
            lakshmi

        1. administrator
          Saurabh

          Lakshmi,

          You can submit May, June, July payslips. If you receive Aug payslip by the time new employer is ready to file the petition, then submit that as well.

          1. lakshmi

            July month pay slip is not providing by employer due to termination of employment. in August i have worked 5 days , probably he will send out full and final settlement copy later

            I have Apr, may and June pay slips only. is it ok ? OR Latest payslip is mandatory for H1b cap exempt process.

            Regards
            lakshmi

          2. administrator
            Saurabh

            Lakshmi,

            Go with what you have. If USCIS really needs July and Aug payslips, they would issue RFE and hopefully you would have them by that time. But this shouldn’t stop you from approaching other employers.

          3. lakshmi

            Hi Saurabh,

            Thank you valuable information

            New employer is saying that i need to go for stamping to enter USA with new I797

            here my question is : if stamping is required , Do i need take appointment and go for interview OR only Drop box can do in india?

            Please let me know

            Regards
            lakshmi

          4. administrator
            Saurabh

            Lakshmi,

            If the old visa stamp has not expired or expired less than 365 days ago, then you are eligible for dropbox (even with change of employers).

  19. Raghu

    Hi Saurabh,

    Thanks for your support in solving our doubts. I read all your points above and helped me to come to a conclusion on my case. however, I would like to post it here so that you can correct me if I am wrong.

    I got my H1B lottery in April 2015. but my case was approved late Dec 2015. I have my stamping until end of 2018. I had initially applied for a Customer but later travelled for other by filling LCA in the month of Feb 2016.

    Now I am planning to change my company and would like to stay in India until Jan 2018 due to personal issues.

    now my concerns are :
    1. Is it possible for me to get the H1B cap exempt If I apply for H1B after Jan 2018 but before my stamping ends? even after my present employer revokes my VISA. I feel positive about this.
    2. If I am applying for the VISA again what are the documents I should have with me?
    3. Are there any Additional concerns you suggest me to look up to.

    thanks
    Hoping for your support.

    1. administrator
      Saurabh

      Raghu,

      1. Yes
      2. Documents would be similar to what you had for initial filing. Additional documents include copy of previous approval notice and payslips for the period you were inside US (if applicable)
      3. It will be subject to regular petition’s norms and checks. Nothing out of ordinary.

  20. Sonam Duggal

    Hello,

    I got an extension of an unpaid leave which made my last date with current company to be September 9. I managed to find a new job but the immigration team with the new company will be able to start my H1B transfer process next week. I am a lil concerned around the timing aspect. When does the current employer put a request to USCIS after it has issued a termination letter to the employee? If I receive the receipt notice for H1B transfer from new employer/USCIS before September 9, how would it be affected by any action my old employer wishes to communicate to USCIS?

    Thanks!

    1. administrator
      Saurabh

      Sonam Duggal,

      Usually they send out the letter to USCIS after you have ended your employment, so it would be after Sep 9. Even though each employer has a different policy, most of them will only send 1 letter after the person has left the employment asking for H-1 petition to be withdrawn.

      1. Sonam Duggal

        Thanks Saurabh. If things happen in sequence I mentioned previously, how would a withdrawal petition to USCIS from the current employer affect the H1B transfer petition that USCIS is processing/processed from the new employer?

        1. administrator
          Saurabh

          Sonam Duggal,

          If the current employer sends an early withdrawal request but correctly identifies the last date of employment, then you would still be ok (as long as B’s petition is received prior to Sep 9).

          However, if the current employer doesn’t identify Sep 9 end date or USCIS makes an error in processing, then they may treat any time b/w that XX date and B’s petition filing date as out of status. It would then be USCIS officer’s discretion whether to ignore it (if the delay is just for few days) or issue RFE asking for clarification. You can then show that even though withdrawal was processed on XX date, yet you worked for A until Sep 9 and hence were in status.

          Makes sense?

          1. Sonam Duggal

            Hello Saurabh!

            You are indeed doing a great job by helping others in these tricky situations! Kudos.

            I was informed by my current company that they would notify USCIS after September 9 with the correct date(It almost takes for a week for the current employer to send that notification to USCIS they mentioned).

          2. administrator
            Saurabh

            Sonam Duggal,

            That’s good. So as long as the new employer applies the petition before Sep 9, you have nothing to worry about.

  21. Aryan

    Hey Saurabh,

    Hope you doing well, Thanks in advance for all the answers you provide to the needy, you been doing a great JOB. I have a situation and need a lil bit of help/suggestions/advice/comments, My OPT Extension was recently approved(Though am not on any project, looking for one) upon providing the i983 Form from my Employer XYZ. However I have received an excellent job offer from Employer ABC, upon seeking the permission to join Employer ABC, my employer XYZ is threatening me saying if i leave his company or If i don’t get any job out of his company within the next two months, He will revoke my OPT Extension by calling my school/USCIS. I don’t know if that’s something possible? And the other thing is if I’m changing my Employer, I know for sure I have to inform my school but do i need to submit a new i983 to the school?
    Please provide me with necessary advice/options.

    Thank you for your time, really appreciate your help.

    Regards,
    Aryan

    1. administrator
      Saurabh

      Aryan,

      Sorry, I don’t know the answer for sure; but I think that you need to submit I-983 form for the new employer. Maybe your DSO can provide more guidance on this.

        1. administrator
          Saurabh

          Aryans,

          I don’t think he can revoke the OPT. What he can do is inform USCIS that you are no longer employed w/ them and hence accumulating unpaid days. There is only limited number of days that you can remain unemployed on OPT.

    2. Sonam Duggal

      Hello Saurabh,

      The new employer would be filing my H1B petition shortly and has requested for my 3 most recent paystubs(after LCA approval). Since I am on an unpaid leave with current employer until September 9 ( just to maintain my H1B status), current employer isn’t generating any paystubs for the same. My last paystub is for the period between 8/1/2016-8/15/2016 and pay date is 8/19. When they said ‘most recent’, does my last paycheck date fall in the acceptable time-range if the H1B petition is being filed this week? Thank you for your help!

      1. administrator
        Saurabh

        Sonam Duggal,

        Looks like you are paid biweekly. So you can submit 2 payslips from July and one from August and you should be fine. Those are considered as most recent (even if you were getting paid, 2nd payslip for Aug won’t be generated until after Aug 31).

    3. Sonam Duggal

      Hello Saurabh,

      My last paystub from my current company was generated on August 19. My petition with the new employer was filed yesterday(Aug 30, yet to get the receipt). From Aug 19 until September 9( my termination date with current employer) I am on a unpaid leave which my company was kind enough to grant for job search. Is that leave of absence legal under an H1B? I read somewhere that leave of absences are not valid for H1B employees if they reside in US during that time. Since no paystubs are generated between Aug19-Sept 9 I am a bit concerned. Although I do have a verification of employment letter from my current company dated Aug 30. Can that be considered as proof that I was still with my current employer on a valid H1B status between Aug 19 – Sept 9 ?
      P.S. : The legal team with current employer stated that they would contact USCIS about my H1B only within a week from my last day (Sept 9). The LCA for new employed quotes Sept 5 as the start date. My question is, is my H1B status still valid?

        1. Sonam Duggal

          Hello Saurabh,

          I just received the I797 approval from Sept 9 2016 – 2019. My termination date with previous employer was September 9. I started my H1B in Oct 2015 and had got it stamped in April 2016. My question is will my stamping on the H1B Visa be valid considering I got terminated with previous employer? Would any notification from previous employer to USCIS about my termination affect the stamping/ H1B Visa?

          Thanks!

          1. administrator
            Saurabh

            Sonam Duggal,

            Congrats on the approval. I assume it came with new I-94 attached at the bottom.

            The old employer’s visa stamp remains valid until it has been marked as canceled. So you can still use it for travel even when entering US using new petition and given that old petition may have been withdrawn. Make sure to let PoE officer know that you are using the new petition and not the one associated with the visa stamp.

    4. nitin

      what happens if the petition was filed a few weeks after the initial employer sends this letter and it is before a month since termination from the previous employer?

  22. Sudha

    Hi

    I had my H1B approved in oct’2015. I came to US and started working with my employer from March 2016. When I tried to do a H1B transfer to my new employer in the month of May 2016 here comes the actual problem. I got a NOID stating that my original H1B petition is revoked (which i was totally unaware off till the minute i got my RFE notice )and hence i am not eligible for the H1B Cap exemption too.

    1. In this situation, am i allowed to stay in US and if so, for how many days(in RFE its mentioned as 33 days)
    2. What are the possibilities and hopes that i have to get my approval on the revoked petition so that i can continue working in US

    Appreciate your suggestion. Thanks!

    1. Ron

      Who revoked it? Was it revoked after NOIR. Can you check your case history in USCIS portal and update here? ( Mask your case number). If it was revoked after the employer asked it to be revoked then transfer with consular processing should not be a problem. If it was revoked for fraud by USCIS, then you should consult with an attorney.

      1. Sudha

        Hi Ron

        Thanks for your reply. Well, in my case its been revoked by USCIS on fraud findings as its mentioned in my H1b TransferRFE(NOID).
        Here is my original H1b petition response:
        Revocation Notice Was Sent
        On May 6, 2016, we revoked the approval of your case, Receipt Number WACXXXXXXXX, and mailed you a revocation notice. It explains the reasons for our action. Please follow the instructions in the notice and submit any requested materials. If you do not receive your revocation notice by May 20, 2016, please go to www.uscis.gov/e-request to request a copy of the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address.

        1. Ron

          That is sad. I don’t think you can use this petition now. Still, consult with an attorney. Out of curiosity, do you know if your status in USCIS changed from approval -> Revocation sent directly? I would assume USCIS issues NOIR before actually revoking your petition. So it should be Case received – Approved – NOIR sent – Revocation was sent.

          You can find this history by creating an account in USCIS case status page -> entering your case “egov.uscis.gov/casestatus/landing.do”, adding your case to my cases and checking case history. It would be helpful if you could update that.

          1. Sudha

            Hi Ron

            I really didn’t check the status after being “Approved”, So, can you tell me what are the options left with and how many days? Thanks!

    2. administrator
      Saurabh

      Sudha,

      That’s unfortunate. Your current petition was revoked on May 6, and you have continued to stay inside US beyond that date. Didn’t your current employer tell you about it? How could you continue working for old employer beyond May 6 after the petition has been revoked.

      You don’t have any grace period and should leave US immediately. Talk to a good immigration attorney.

      1. Sudha

        Hi Saurabh

        My employer is already in touch with his attorney and waiting for an update from my employer. Will keep you posted on the updates. Thanks!

  23. Venky

    Hi,

    Can you please help in this scenario. Status updated as NOIR on approved H1 with current employer A (On July 27, 2016, we mailed you a notice…).
    I already had an offer and employer B already filed H1 with receipt date 26th (On July 26, 2016, we received your Form I-129…)

    I am asking employer A, how status got updated on approved H1. He’s saying he did not submit request to cancel/withdraw. He’s saying USCIS sent this due to different reason (saying according to USCIS they should have paid 2000$ for H1 transfer at the time of filing but employer didnt do so due to employer count less than 50 etc). I am not sure if he is saying true and not sure if he wants to buy time or he wants to keep me out of status if that is revoked.

    If I upgrade to premium with current employer, am I safe in this situation. what do you think about this scenario.

    1. Ron

      Upgrade to PP. It`s valid till getting revoked. 30 days is what you have i think. You cant do anything after that. For clarity can you paste the complete message here after masking your case?

    2. administrator
      Saurabh

      Venky,

      You mentioned H-1 transfer, so I assume you are already inside US on H-1 with A or any other employer. In this case, B’s petition shouldn’t be impacted by A’s as B can use original approval notice for transfer. Still it would be a good idea to upgrade to PP and get a quick decision on B’s transfer petition.

  24. Victoria

    Saurabh,

    This post was really helpful. I am in a really urgent situation right now and am not sure what to do. I would appreciate it greatly if you could let me know what I need to do here:

    1) My H1B visa has been approved and I have been waiting for my H1B visa to come out in October
    2) I have been looking for a new job and my former employer that sponsored my H1B visa terminated me last Thursday and sent in a letter to USCIS letting them know that I have been terminated
    3) I found a new employer last Friday and they are willing to sponsor me

    What does my new employer need to do so that I am still except from the cap and so that I can still get my H1B visa this October?

    Thanks!

    1. administrator
      Saurabh

      Victoria,

      They need to submit documents similar to what old H-1 employer sent to USCIS. Additional document required is proof of having made through the cap. This could be copy of prior H-1 approval notice (preferred) or receipt number + print out of online status showing it as approved.

      1. Victoria

        Saurabh,

        Thanks so much for your quick reply. I talked to USCIS representative and they told me that I would need to get Form ETA 9035 filled out and once that is approved, I will need to submit I-129. My follow-up questions are:

        1) Is this something that I can do or should I hire an immigration attorney? I’ve never had to do myself since my former employer hired an immigration attorney for me before.
        2) If this is something I can do, then what is the difference between ETA 9035 and ETA 9035CP?
        3) Do I send in both ETA 9035 and I-129 all at the same time?
        4) USCIS told m I need to file supplement H. Do you know where I can find that?
        5) To confirm, are these the only documents that I need to file? ETA 9035, I-129, Supplement H, and my previous approved H1B visa receipt?

        Thanks so much!

        1. administrator
          Saurabh

          Victoria,

          1. This needs to be done by an employer or their attorney. As H-1B holder, you are not required to do this.
          2. Your employer can decide what’s the correct form to file. If they don’t know, then probably they should hire an attorney who can guide them with this.
          3. The employer will first get LCA (ETA 9035) certified, and then apply for I-129.
          4. Don’t know what this means, but probably asking to submit copy of previous H-1 notice to show that it is cap-exempt.
          5. These are the bare minimum documents. Additional documents may be required depending upon the case.

          Is the new employer not doing any home-work here?

  25. Kranthi

    We have filed Amendment case for our employee “xyz” in last year September 15, 2015 which is still pending at USCIS. Few months back she changed the project at new client in January 2016 and we filed Amendment along with the Extension in premium processing which got approved in Feb 2016. Can we withdraw the pending Amendment case now ? what would be the process and how long it takes to withdraw.

    1. administrator
      Saurabh

      Kranthi,

      I would assume the process to similar to any other withdrawal. Write a letter to USCIS requesting the withdrawal and submit copy of receipt notice. This should be processed within few weeks.

  26. Ali mohammed

    Hello Suarabh,
    Thanks for replying my question.
    As I privoiusly mension my concern about H1B RFE and stem opt case pending, my employer is saying that if I’ll not get the response before 4th August he will not respond to H1B RFE ( withdrawal ). Can he reply to H1B RFE without stem opt EAD ?
    And if stem opt is pending then how can i reply to H1B RFE ?
    What are the supporting documents should I reply ?

  27. Amita

    Hi Saurabh,

    I am currently working for a non-profit organization A (eligible for cap-exempt H1b), I have company B filed a cap H1b for me, it is approved and will take effect on Oct 1st, 2016. Can i transfer that cap H1b to my current job now without working for company B so that in the future, if i wish to work for another profit company I can still be cap-exempt? If so, which type of H1b (transfer of employer or new cap-exempt H1b with reference to prior one) shall i file and how to proceed? What if company B withdraw that H1b later? Many thanks!

    1. administrator
      Saurabh

      Amita,

      Even though one H-1 is cap-exempt and other is cap-subject; they are just both H-1s at the end of the day. If you plan to work for A after Oct 1, you can do that w/o taking any further action. In future, if you want to move to for-profit company C then you will have to submit A’s petition as current petition, and B’s petition as proof of having made through the cap. C’s petition would be considered as cap-exempt in such a case. Makes sense?

      1. Amita

        Thanks Saurabh, that makes sense. But since i will have to tell company B that I m not going to work for them, what if they withdraw their petition before Oct 1, then that cap H1b had never been used, can I still keep the cap count in that situation. Also I haven’t had my current company A filed H1b petition yet, if i ask them to do it now, will they know about company B’s petition? Many thanks!

        1. administrator
          Saurabh

          Amita,

          AFAIK, B should still be able to file cap-exempt petition for you even if A has withdrawn their petition.

          As for B realizing about A’s approval – this is something you will have to figure out. Talk to colleagues who can keep a secret to see how the manager and management would react. No doubt, you would be in a much better position if B applies for a cap-subject petition using A’s petition as reference. That would leave no room for guesstimates.

          1. administrator
            Saurabh

            Amita,

            A’s petition has already been counted against the cap and that would cause any future for-profit employer sponsored petition to be cap-exempted. I shouldn’t matter whether B’s petition is filed as cap-exempt through entity set-up or through A’s approval notice.

            You should also discuss this w/ B’s attorney when they are ready to file the case.

      2. Chandu

        Hi Saurabh,

        I am currently on F1 Visa valid until Dec 2016. My employer (Employer A) has filed my H1 application. It got approved. But now he is going to terminate my job in a week from now. I have no idea whether he will my approved. Suppose if he revokes my H1 before 1st October. Can I transfer my H1 with new Employer B with CAP exempt? If so when should I file my transfer H1? After Oct 1st or should file now itself?

        1. administrator
          Saurabh

          Chandu,

          I **think**, you may still be eligible for cap-exempt petition even if the current petition has been revoked. Start finding a new employer and discuss the case w/ their attorney so that they can take an action ASAP.

  28. Rocky

    Please let me know if we can transfer an unused, approved and stamped petition from India that is under withdrawal/revocation?

    Below is my scenario:

    1. Approved and stamped, valid till next three years.
    2. Below is my current status for the approval. Would someone know if this is withdrawal from employer or revocation from USCIS? The status just before this was approved and not NOIR.

    “Correspondence Was Received And USCIS Is Reviewing It
    On June XX, 2016, we received your correspondence for Form I-129, Petition for a Nonimmigrant Worker, Receipt Number EAC151XXX. We are reviewing your correspondence, and will mail you a notice if we need something from you. If you move, go to www.uscis.gov/addresschange to give us your new mailing address.”

    3. I am not sure if my employer ( yes, it’s a desi consultant) has actually filed for withdrawal. He won’t reply to my email. How much time would withdrawal take?

    4. I have started looking for transfer of this petition, please let me know if any other employer can get it transferred.

    5. I have not used this petition yet as consultant was unable to find a project, and probably was expecting some money from me.

    6. Consultant was also in trouble recently and some of his employee were sent back from POE.

    Please let me know, slightly tensed 🙂

    1. administrator
      Saurabh

      Rocky,

      It is not possible to say w/ certainty if employer has sent something to USCIS or not. Only employer can provide more information on that.

      Its good that you have started looking for new employers. Whenever you zero down on one, have it filed in PP to get quicker result.

      If the employer was in bad news recently, it is also possible that USCIS has started looking at all their approvals as a precautionary measure. Again, just a guess.

      PS: I have updated the receipt number.

      1. Rocky

        @Saurabh, Thank you very much. Masking of the receipt is appreciated even more 🙂

        Would “We are reviewing your correspondence” not indicate that employer sent some letter to USCIS? I checked on myvisajobs.com and 50% of the h1 for this employer are already in certified-withdrawn status.

        In case the petition is revoked, it will not be transferable I think. Please let me know.

        1. Rocky

          Addition to above: If USCIS decides to revoke it, I guess they will reply with NOIR status. Is it possible to transfer a petition that is in status NOIR?

        2. administrator
          Saurabh

          Rocky,

          It is possible that employer has sent withdrawal request to USCIS. In my opinion, if employer has requested withdrawal and it happens, even then it should be eligible for cap-exempt filing. However, if USCIS revokes the petition all by themselves, then it should not be eligible for cap-exempt petition (should be ok while NOIR has been issued but revocation hasn’t happened). If you find a new employer, maybe their attorney can provide a more concrete response.

          1. Rocky

            Ok, today the status has changed to “Revocation Notice Was Sent”.

            Below is the status.

            Revocation Notice Was Sent
            On July XX, 2016, we revoked the approval of your case, Receipt Number EAC15XXXXXXX, and mailed you a revocation notice. It explains the reasons for our action. Please follow the instructions in the notice and submit any requested materials. If you do not receive your revocation notice by August X, 2016, please go to www.uscis.gov/e-request to request a copy of the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address.

            Does anyone know if this is withdrawal by employer or revocation by USCIS. I never saw the INTENT TO REVOKE status in my case history.

            I will update this thread whenever I am able to transfer the case to a new employer 🙂

          2. administrator
            Saurabh

            Rocky,

            Can’t say who initiated the withdrawal. Once you find a new employer, discuss the case w/ their attorney. Maybe they can suggest what happened.

  29. Karthi

    Hi Saurabh,

    I have got my H1B approved Dec 2015. I have the stamping from my current employer(Call as X, based in India) Valid upto Sep 2018. I had filed a LCA from company X before coming to US(its still not approved). Due to few personal issues i am resigning the job, and would like to stay in India for about 6months. Now my questions are:
    1. As I resign from my current employer, its obvious that Company X will revoke my H1B. is it possible to come back with the same Visa through company Y after 6 months or more?
    2. What the typical time period required to complete the process?
    3. Do I need to wait till my LCA gets approved to make my VISA valid?

    Thanks in advance.

    1. administrator
      Saurabh

      Karthi,

      1. Yes
      2. Y will have to file cap-exempt petition for you. This could be done as quickly as 1 month (PP) or 6-7 months (RP).
      3. You already have approved petition and visa stamp through X, correct? So their new LCA filing has no impact on what you plan to do.

        1. Karthi

          Hi Saurabh,

          Is there any category of H1B that is only employer dependent and will not allow changing the employer. if NO why to employers prefer H1B when they don’t have the guaranty that the employee serves the organization.
          what may be the possibilities that may not allow an employee to change the employers?
          these questions are out of curiosity. . .

          Thanks

          1. administrator
            Saurabh

            Karthi,

            H-1 always give the freedom to change employers. For employment there are only 2 visas – L-1 and H-1. Lot of companies used to go w/ L-1 route as it doesn’t allow employer to be changed, doesn’t have annual cap etc. However, job requirements for L-1 are very strict and specific and most of the offered jobs weren’t really L-1 eligible jobs. Once USCIS started issuing bulk RFEs (I think it was b/w 2008-10), companies stopped abusing L-1. H-1 is the only option that they have.

  30. Sheetal

    Hi,

    My application was picked in the lottery this year (premium processing). An RFE was raised by USCIS. My employer has now decided to withdraw my application. I’m currently on H4.

    Can i transfer to a new employer?
    What other options do I have?

    1. administrator
      Saurabh

      Sheetal,

      Unfortunately, you don’t have any options here. Transfer cannot be applied as the current petition was never approved. You have to go through cap again.

  31. Suresh

    Hi,
    My H1b got picked up last year 2015 and is valid till 2018. I never went to stamping as my employer told he does not have a genuine client and some one from the same employer who went to stamping got rejected. so, he told me not to go for stamping.
    Till now my employer failed to get a genuine client. I am in India now.
    1, Can I transfer my H1b using I129 form. I have the original petition with me?
    2. If I apply for more than 1 employer h1b transfers ?
    3. if one gets rejected Can I still go with the others which are approved?
    4. Will there be any problem i nthe Visa Interview as i might have h1b transfer while in india itself?

    1. administrator
      Saurabh

      Suresh,

      1. It is better to have approval notice copy. If not, at least the receipt number is require
      2. Possible
      3. Yes
      4. No additional issues b/c of this

  32. H1bInfoSeeker

    Dear Saurabh,

    I have a query for you please.

    My H1B petition was approved in 2014 lottery, and is valid till Sept 2016. I have not travelled to US as yet. I got the H1B visa stamped and was planning to travel, but then I have now received a NOIR. My employer received the NOIR details and says that he will be answering the queries and simultaneously he will be with drawing the petition since the query is on the client letter and the employer do not have a relationship with the client anymore.

    1. If uscis revokes my original petition due to employer’s request to withdraw, can I still transfer my H1B to another employer under cap exempt?
    2. If uscis revokes my original petition due to unsatisfactory reasons provided by employer, will I still stand a chance to transfer my H1B under cap exempt?

    Awaiting your kind response. Thank you very much in advance!

    1. administrator
      Saurabh

      H1bInfoSeeker,

      1. Yes, cap-exempt still possible
      2. Not possible

      However, check w/ an attorney as well about this.

  33. Kalpesh

    I got H1B in 20Nav2008 and Expire Sep2011 I Came in USA Feb2009 and I return back 15April 2009 india. I didn’t work there. Can It be renewed again? I check My H1B status online. I see my Case was Approved. My H1B as Cap exempt with another employe sponsorship,do i need to file new H1B petition all together and wait for lottery again?

    1. administrator
      Saurabh

      Kalpesh,

      So you were inside US for 2 months on H-1 but didn’t get paid. In other words you didn’t maintain status.

      Another employer can still file a cap-exempt petition for you using old petition as reference. Once approved, you can appear for visa stamping and then travel to US to work for them.

  34. More

    My visa stamped , valid until Oct-2016 & can be extendable up to 2019. My H1 have been revoked last week due to employment termination. Currently i am in india now. Can it be possible to transfer my H1 after the revocation. Please let me know & assist

    Thanks

    1. administrator
      Saurabh

      More,

      Yes, another employer can still file cap-exempt petition for you even though your H-1 was revoked due to termination. You would need old approval notice or at least receipt number for this.

      1. More

        Thanks Saurabh for the clarifications.

        Can i travel with valid Stamped visa of A Company with new I797 issued by B company after transfer is done. B company asking me to travel with Stamped visa of Company A & show the new I797 of B . any problem during the immigration ?
        Please assist

        1. administrator
          Saurabh

          More,

          This is doable. You can travel to US using B’s approved petition and A’s visa stamp. You are not required to get another visa stamp until A’s visa stamp has expired.

          1. Ali Mohammed

            Hello Saurabh,

            I am on F1 visa, my initial OPT is expired in February and got the first RFE, USCIS were asking me to submit pay stubs and offer letter this were replied, again USCIS pushed my case and issued RFE ( it was about I983 form and new I20 signed before may’10) i had replied to this RFE also and my case is pending from February. My H1B is got picked up this year got the RFE, it need to be reply before 4 August, in this they are asking my status(EAD card) which is pending .
            My question is that what should i reply in H1B RFE ? and i got a new project can i work and run my pay stabs in this situation ?

          2. administrator
            Saurabh

            Ali Mohammed,

            Your scenario is a complex one and your attorney is the best person to handle this. You don’t have much time left to respond to RFE. Maybe contact USCIS asking for update on your EAD card and hope it arrives before Aug 5. Then reply to H-1 RFE with that EAD card.

            Your attorney can also argue that you are unable to work as the EAD extension is still pending.

  35. Help Needed

    My VISA has been approved, Stamping done and all went well with Employer A. Now I see no opportunities to utilize my H1B from employer A. So far I haven’t traveled to US. My questions are:

    1. If I put a paper to join Employer B (who starts my transfer once join), What might be the worst case I end up loose my chances to fly to US.

    2. What precaution I should take before I switch to new company who says definitely initiate h1 Transfer.

    3. I have valid original docs (All docs, Receipt,, Approval, Stamped visa too) But never traveled to US. Employer A want to punish me , How far he can go so that I may loose a chance of utilizing my H1B.

    4. I have validity till 2018 June. But As I already lost 8 months with Employer A, I want to explore other opportunities. What are all risk involved

  36. Mohammad

    Hello Saurabh!

    I’m posting another question. As i told before that my H1 has been filed by xyz company and i am layed off as my company doesn’t have project. They asked me to work under any employer until my H1 starts. Since then, i was looking for jobs in Telecommunication field.
    Anyways, i got RFE for H1B visa and I haven’t received any update about the evidence documents asked by USCIS.
    Now, i got a job in another company. So, my question for you is, do i need to update my employer details in university and if i do so, will it a problem for me in H1B visa? And in case my H1B visa gets rejected, i need to apply for STEM OPT extension in August. Is it going to affect my opt extension if i change employer?

    Please clarify.

    Regards,
    Mohammad

    1. administrator
      Saurabh

      Mohammad,

      If you change employers while on OPT, then you do need to inform your school about it. The new employer needs to be e-verify as you are in OPT extension.

      Even if H-1 is denied, you should be able to file OPT extension and continue to work for new employer. Just keep a tab on your SEVIS record. Currently, it may have a status of COS pending (as your H-1 selected) – make sure it reverts to active F-1 OPT in case H-1 is denied.

  37. Rocky

    Saurabh.

    I received my petition approved in 2014 and got the h1b visa in same year and came to usa in sep 2014..i stayed there from sep 2014-dec 2015(total 1 yr 3 months) and then i moved to canada in PR status and from jan 2016 -till (total 6 months)…my question is as i am.out of usa for 6 months obviously my X employer might have revoked the original petition but i have h1b visa from my X employer till aug 2016….so can i now transfer my h1b visa by some other employer …

    1. administrator
      Saurabh

      Rocky,

      Yes, H-1 transfer can still be applied even if original petition has been withdrawn/expired/revoked.

  38. venkat

    HI SAURABH,

    i got my h1b visa and came back to India, on dec 2015. My H1B visa is valid till june 2017. Now I am in notice period and I suspect that my visa will be revoked by the employer. If it was revoked, will i be able to get transfered by the new employer or please advise what should I do to comeback to US?

    1. administrator
      Saurabh

      Venkat,

      Yes, even if current employer withdraws the H-1 petition, you can still use it for cap-exempt filing in future through another employer. Keep a copy of the approval notice, most recent payslips from the time you were in US and W-2s.

  39. Nitin

    HI
    I had a valid H1B visa and was stamped. I got terminated from my work. My last working day is after another week. I do not have any jobs in hand right now. However, I think I will have one in 2 months.
    1. Can the H1 visa be transferred by that company when I am in India and I can get it re stamped and come back to USA?
    2. There is also another opportunity in the same company that will also mature in about 2 months. Can the same company revoke the visa?

    Thanks

    Nitin

  40. administrator
    Saurabh

    Kishore,

    You will have to this yourself. Find other people who were duped by this employer/agency and then maybe file a case against them.

  41. Tirumala

    I have a question. Say, my H1B is approved and I am currently on valid OPT but received RFE for STEM extension (had applied for 17-month extension) and asked to apply with a training plan.

    What are my options? My H1B was filed with COS. If say I am fired when I am in my cap-gap, am I still in valid OPT work authorization until September 30?

    Shall I just apply for 24-month extension?

    1. administrator
      Saurabh

      Tirumala,

      Once H-1 is approved w/ COS you can stop worrying about OPT extension and just talk to DSO to update SEVIS record for cap-gap. This way you can work on OPT cap-gap until Sep 30 and then be on H-1 from Oct 1. Does that make sense?

  42. Mohammad

    Hello,

    Please clear my doubt!

    My employer has filed my H1B and luckily it got picked. However, my company doesn’t have project and since my OPT is still valid, they asked me to work on any other projects.
    I am getting a doubt that my employer has withdrawn I-129 form. Can this happen? I mean can employer withdraw I-129 form before approval? If this can happen, will i be getting any notice or how can i get to know about this?

    1. administrator
      Saurabh

      Mohammad,

      Employer can very well withdraw the filed I-129 if they want to. If the petition is withdrawn, the same would be reflected on the online status message. Do you have the receipt number to track the status online?

      1. Mohammad

        Saurabh,

        Thank you for your response.
        Yes, i do have the receipt number. It’s showing that the “case has received “.
        If the I-129 form has been withdrawn, will the status is going to change online?

        1. administrator
          Saurabh

          Mohammad,

          It should change to something like “received request to withdraw the case” or “issued notice to revoke/withdraw” etc. Keep in touch w/ employer as withdrawal of case will impact your status.

  43. setty

    Hi,
    I’m on OPT status one of my employer to whom i’m working filed h1 and it got picked in lottery and then later got RFE for it and my employer sent the required documents but in between i got new best job so i shifted to new employer. Now can my first employer withdraw the H1B processing ?
    And if withdraws can i apply for next year from different employer with out any problem.
    Let me know.
    Thank you

    1. administrator
      Saurabh

      Setty,

      The H-1 employer can very well withdraw the H-1 petition now that you no longer work for them. The ball is in their court.

      If the petition is withdrawn before it is approved, you will be out of lottery. Did you consult with anyone about this before changing employers?

  44. Neha

    Hi,

    I got my H1B approval notice last year but at the same time my husband got his i140 approved so decided not to go for H4EAD instead. So the company cancelled my petition and I started working on H4EAD.
    But now my husband is planning to change his employer so I wanted to know if i can activate my H1B as cap exempt with another employer sponsorship, since i have never used my 3 years period of approved H1B petition? Or do i need to file new H1B petition all together and wait for lottery again?

    1. administrator
      Saurabh

      Neha,

      You can use old H-1 petition as reference to file cap-exempt petition. No need to go through the lottery again.

      BTW, his change of employers doesn’t impact the approved H-4 EAD that you already have.

  45. Sherry

    Hi I have some questions and will be really appreciate if you can help my with these! Thanks!

    1. I am currently applying for STEM extension and my H1b petition is received (win the lottery but not approved yet). I d like to stay in STEM OPT instead of CAP GAP at this moment, if my STEM is approved before H1b, can i still switch to CAP GAP when my H1b being approved later? Or will H1b approval affect my OPT STEM decision?
    2. If my H1b is approved and i want to withdraw H1b before change of status and stay in OPT (i believe it is possible if the employer request a revocation of the H1B petition before start date?), will that affect my future H1b petition (lottery and their decision)?
    3. If the employer who petition for my H1b decided to withdraw the offer before start date, what will happen to my H1b petition?
    4. Can the H1b be transferred before starting date Oct 1st (actually in this case it will be a new petition, just cap exempt right)?
    5. In green card petition, s it true that after I140 was approved, one can change company but still retain the previous PERM number?

  46. Kamilla M

    hi. my application was selected in the lottery this year, and currently in its “Premium processing” state (awaiting either an RFE or an “Approval”). this was good news (for me …). now there’s also bad news :p the employer turned out to be not the nicest person (i really do barely say such thing about anyone, but this one is a “gem”… so, he said that if they get back with an RFE – he will simply cancel the petition (by sending a written request for withdrawal, which from my understanding will result in automatic cancellation of my h1b visa by USCIS – pls confirm though). if it’s an approval – then he said he will not cancel it but i need to cover all of the expenses spent for this visa (attorney fees+ USCIS fees = total of $5,100), and if i don’t find the money by June 1, then he will send the written request for cancellation of my h1b visa.
    my questions are:
    1. can i transfer to another company while the case is being processed? (i..e BEFORE they get back with an RFE or an Approval)
    2. is it legal for him to demand (by blackmailing) money like that? and if not, what can I do? where to file a complaint etc (if he cancels my visa anyway, i’ll have nothing to lose and am not opposed to an idea of taking him down since he really has been treating me like i’m a dog or smth 🙁 )
    3. if USCIS returns with an Approval, and if i transfer to a new company before June 1, can this current employer cancel my h1b visa then (i.e. after the new employer sends in the Petition for transfer)? In other words, – once my h1b visa is Approved, does the current employer still have power over it, and can he cancel it at any point after the Approval comes in?
    4. Can i even transfer to a new employer before Oct 1?

    thank you so so much in advance for your kind advice!

    Kind regards,
    Kamilla

    1. administrator
      Saurabh

      Kamilla M,

      If the petition is withdrawn before it is ever approved, then you cannot use that petition for future cap-exempt references.

      If the petition is approved and then withdrawn, it may still be used for cap-exempt purposes.

      1. No. It can be transferred only after it has been approved
      2. The employer should not ask you for H-1 filing fees, as they need to pay it by law. If forced, you can complain to DOL and USCIS about it.
      3. The employer can withdraw the petition anytime – even after it has been approved. However, another employer can still file a cap-exempt petition for you using old petition as reference.
      4. IMO, this can be done; but you need to check it w/ an attorney first though.

      1. Kamilla

        Thanks a lot for all your responses dear Saurabh! Sincerely appreciated the same.

        Just one last quick clarification, if you don’t mind.

        3. The employer can withdraw the petition anytime – even after it has been approved. However, another employer can still file a cap-exempt petition for you using old petition as reference. – Would filing a cap-exempt petition (by a new company, using my current petition as a reference) mean a guaranteed approval by USCIS? Or there’s a fair chance that they can deny it.

        1. administrator
          Saurabh

          Kamilla,

          Nothing is a guaranteed approval. It will be subject to rules, regulations etc just like your initial petition.

          1. Kamilla

            Dear Saurabh,

            thank you for your kind response and clarification. Noted and understood. Thanks again. I’ll pray that all of us who are trying to make it through will manage to do so!

            Thank you again.

            God bless

  47. kamlesh

    Hi,

    My US visa H1B Approved in 2012 and Expired in 2013, But the visa was not stamped at all, Can It be renewed again?

    I have receipt number but dont have approval notice with.

    Can any directly serahc jobs in US or can any employer hire me based on the valid petition and file for recap of same H1B?

    What are the option to get a jobs in US now.

    1. administrator
      Saurabh

      Kamlesh,

      You can find an employer in US or India willing to file cap-exempt petition for you. Submit only receipt number and print out of online status showing it as approved. It is better to have approval notice, but it may work even w/o it. Its just that new employer has to trust that the receipt indeed belongs to you.

      1. kamlesh

        Thanks Saurabh.. I just searched my mail got approval notice copy along with LCA.. Does this make my case more positive to get employer in US?

  48. Tirumala

    Hi,

    I have approved H1B petition from Emp A. I went visa interview on Dec 2015 and I got 221g Administrative process. As it is got delayed,
    1: can I withdraw my visa process and transfer my petition to new Emp B.
    2: How much time it takes?
    3: can I transfer my prtition while my visa in withdrawing process?
    4: will I face any problem while withdraw and transfer?as I am transferring my petition to well noted organisation.

    1. administrator
      Saurabh

      Tirumala,

      1. You can email consulate to withdraw the case. Irrespective of whether you withdraw it or not, B can file a cap-exempt petition for you.
      2. Not sure how much time withdrawing will take. B’s petition will take 2-6 months in regular processing.
      3. Yes, it can be done anytime
      4. My suggestion would be to transfer it first and then withdraw it. There is a possibility that they would send the petition back to USCIS for reconsideration if you withdraw it. If USCIS ends up revoking the approved petition, then transfer will not be possible.

        1. administrator
          Saurabh

          Tirumala,

          I am saying first get transfer petition approved through another employer. After that, you can withdraw this 221g request. There is a possibility that they would send the petition back to USCIS for reconsideration if you withdraw it. If USCIS ends up revoking the approved petition, then transfer will not be possible.

          1. Tirumala

            Hi saurabh,

            Bad news, I got refusal letter(OF-194).
            Few days back I have approached my company for H1B petition transfer and they accepted.
            Now I got this refusal letter. 1: Now is it possible to transfer my petition to my current company?
            2: do I need to inform my current employer about my refusal?
            Please help.
            3:

          2. administrator
            Saurabh

            Tirumala,

            1. Yes, but they need to act quickly. Most likely consulate will send the petition back to USCIS for reconsideration and possible revocation.
            2. Not required but recommended. This way they would know the entire case history and won’t be taken aback w/ any surprises.

  49. Rahul

    Hi there,

    I have a question.

    My employer filed for H1b this year FY – 2017, let’s say it gets approved. I do have valid STEM OPT. If I ask my employer to revoke my h1b can I use my STEM OPT?

    1. administrator
      Saurabh

      Rahul,

      If H-1 is approved w/ COS and goes into effect, then your SEVIS record gets closed. You can no longer use STEM OPT thereafter.

      1. Tirumala

        Thank you for the response, Saurabh!

        And if my job terminates during cap gap, am I allowed to apply for STEM? I need to respond to RFE I received – either withdraw or respond with training plan

        1. administrator
          Saurabh

          Tirumala,

          I am not sure about how many days, but your STEM extension needs to be applied within a specific timeframe. So if you lose job during cap-gap but are still eligible to apply for STEM extension, then go for it.

      1. Tirumala

        Thanks saurabh,

        My doubt, while petition transfer, is a possibility send the petition back to USCIS for reconsideration ?

        1. administrator
          Saurabh

          Tirumala,

          Yes, it is possible. If you find an employer willing to file for transfer, then do so in PP so that such timing issues have less chance to appear.

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