Getting an H1B Visa to work in the US is subject to a lot of luck as the demand is extremely high. To give you a perspective, we had H1B Visa Lottery every year since 2013 for the last 10 years. No one wants to go through the process again. The reality after getting an H1B visa and working for a company for some time can be different. You may want to change companies as you do not like them or the culture. This is where the concept of H1B Transfer comes in.
Depending on your situation, you may want to transfer H1B when you are in the US or even before you enter the US. There are multiple scenarios. As part of this article, we will look at various scenarios, look at the overall process, and the documents required, and understand the cost, timelines, and common FAQs.
What is H1B Visa Transfer?
First of all, there is no official term that is called “H1B transfer“. It is a term coined for our convenience and that’s what everyone calls it. The official option that corresponds to the H1B transfer is called “Change of Employer“. When you fill I-129 Form, which is filed with USCIS when you file an H1B transfer petition, you would choose that option in Part 2.
Below is the screenshot of the I-129 form, where you see the option “Change of Employer” in Part 2, which is on Page 2 of the form.
Technically, the H1B transfer process is nothing but filing a new H1B visa petition with USCIS that is done using the above “Change Employer” option, but that does not have through go through the H1B Registration process or the H1B Visa lottery because the applicant has already been counted in the H1B visa quota cap.
Also, there is nothing really transferred from your old employer to your new employer or even your visa-related stuff. All they are using is your previous employer’s approval notice to ensure that you are cap-exempt and do not have to go through the H1B visa lottery again.
H1B Visa Transfer Eligibility Scenarios, Requirements
Depending on where the H1B visa applicant is during the time of the H1B transfer process, USCIS would look at various requirements related to the applicant, including the visa status of the individual. Below are the various common scenarios :
- H1B Transfer Applicant outside of the US and never visited America.
- H1B Transfer after entering the US, but in a short time.
- H1B Transfer after working in the US and the applicant is in the US
- H1B Transfer after working in the US, and the applicant outside of the US
- H1B Transfer with I-140 Approved
Importance of H1B Transfer Applicant’s Status in the US for H1B Transfer
USCIS looks at the H1B transfer applicant’s status in the US and verifies if the applicant has maintained proper status in the US, in order to approve the petition. It is important to understand this because, applicants have to provide relevant documents like Pay Stubs, Tax Documents, etc for H1B transfer to prove that they were in status at the time of filing. You may read the article US Visa vs Status to understand the difference.
Now, let us look at the above-listed four scenarios in the context of the applicant’s ‘status’ in the US.
Scenario 1: H1B Transfer Applicant outside of the US and never visited America
Usually, this situation arrives, when you, as an applicant, are living outside of the US and a Company in the US applies for your H1B Petition. Imagine, you got an H1B petition approved by a company, and also got your H1B Visa stamping done in your passport based on that company’s job details. Now for some reason, your old employer is not able to get you to the US, and you want to transfer to another company.
In the above scenario, USCIS usually looks at two aspects, one is the applicant’s current status and the second is cap exempt situation.
- Applicant Status:
- The concept of status in the US is not relevant as the applicant is outside of the US and will not have any US visa status.
- So, you as an applicant do not have to prove your visa status. So, there is no need to submit I-94 Arrival Departure Card or any relevant documentation to say that you are in any legal US Visa status
- Cap Exempt Qualification:
- The second part is the cap-exempt situation. This is the tricky part and a slightly grey area. In the past, USCIS used to consider a petition as cap exempt, if you had an H1B petition approved from the employer.
- But, in recent years, USCIS guidance says that you must have got H1B Visa Stamping done as well, to be counted towards the cap for an H1B transfer. What they are saying is, when you go for stamping, you get H1B status on paper and that’s when your H1B cap slots is technically counted.
- If you do not get stamping, they say that you never had H1B status, so cannot use your just petition approval for transfer to another employer.
- So, for you to be cap-exempt for transfer, you must have had H1B Visa stamping done as well after your H1B petition approval.
Scenario 2: H1B Transfer after entering the US in a short time
Usually, this situation arises when the H1B holder after arriving in the US, realizes that the employer is not the right fit or they have a better offer from another employer and they want to transfer immediately. When we say a short time, it means less than two weeks or 15 days.
If someone wants to transfer within 15 days or less after they enter the US, similar to above, USCIS would look at the applicant’s current status in the US and the cap-exempt situation.
- Applicant Status:
- As the H1B transfer applicant has arrived in the US, they have a status, which is H1B given to them at port of entry in a Stamp and I-94 reflects the status as well. The applicant can go online and download the electronic I-94 copy to get the status details.
- The applicant has to prove status, but there is no additional information, except the I-94 copy and the copy of the CBP Stamp on the passport that they need to submit to prove status.
- They do not have to submit any pay stubs or other tax documents to prove that they have maintained their status. This is because the duration is less than 15 days and most employers do not run payroll before 15 days.
- Cap Exempt Qualification: The applicant is cap exempt as they have both H1B stamping and entered inside the US on H1B visa status. If the applicant had H1B status at least once, they are counted towards the cap and are considered cap-exempt.
In the above situation, as the applicant meets both of these, they can do an H1B transfer to a new employer, if someone is willing to file a new H1B petition on their behalf. They do not have to exit the country, they can do an H1B transfer within the US.
Scenario 3: H1B Transfer after working in the US, the applicant in the US
This is the most common scenario of the three as many are in the US on H1B Visa working for a company and they get a better offer outside and they plan to move. Typically, this could be anytime after 15 days or a few months. Similar to the above situation, USCIS looks at the status and cap-exempt situations for transfer.
- Applicant Status:
- As the H1B transfer applicant is working in the US for some time, they need to submit additional documents like pay stubs, Tax returns from previous employers, including approval notice to prove that they maintained proper status all along.
- If an applicant does not submit the most recent pay stubs or tax documents, ( if over a year), USCIS may question the transfer and they may not approve the H1B Transfer with I-94.
- In such cases, the employee has to leave the US and get the stamping done at a US consulate and re-enter the US to work for the new employer.
- Cap Exempt Qualification: The applicant is considered cap-exempt as they worked on H1B before. So, this is implicit and the applicant needs to share the approval notice from the previous employer.
Scenario 4: H1B Transfer after working in the US, applicant outside of the US
This situation arises, when someone left the US after a few years of working on H1B, for whatever reason, and plans to come back to the US as they have not used all 6 years available for H1B. In general, you can recapture unused H1B Time, if you have not used up all the 6 years duration. Now, even in this situation, USCIS typically looks at the status and cap-exempt situations for transfer.
- Applicant Status: As the H1B transfer applicant is not in the US, the concept of status is not relevant, so the applicant does not have to prove his visa status.
- Cap Exempt Qualification:
- The applicant is considered cap-exempt as they worked in the US on H1B before and had H1B status at least once.
- Usually, applicants need to submit a copy of the approval notice of their previous employer. Optionally, the applicant may even submit payslips from his previous H1B employer, Bank statements, and W2 tax forms, in order to prove that legal status was maintained while the applicant was in the US.
- No proof is required for the period of time spent outside of the US. You can even submit your I-94 Travel History
So, applicants in the above scenario can transfer as long as they worked in the past and have not used up all 6 years.
Scenario 5: H1B Transfer with I-140 Approved
One more common situation is when someone has Form I-140 Approved. Usually, I-140 is applied as part of the Green Card process steps, with USCIS, where you wait for the priority date to become current.
In the context of H1B transfers, you can continue to work in the US even after 6 years on H1B, if you have I-140 approved. It also applies to H1B Transfers too. If you have an I-140 approved for over 180 days and is not withdrawn during that 180 days, you can use it to apply for an H1B transfer as long as you want without any time limit of 6 years. You can do these transfers until the priority date becomes current. To avail of this option, USCIS looks at the below
- Applicant Status: If the applicant is in the US, they need to submit status-related documents like I-94, Current Pay stubs, tax documents, etc.. If the applicant is not in the US, then it is not relevant.
- Cap Exempt Qualification: As the applicant of H1B transfer has used all 6 years, they need to prove that they have an employment-based green card process going on and I-140 is approved. So, you need to submit a copy of the I-140 along with the H1B transfer. If your employer has not shared it, you can get it using an FOIA request with USCIS.
Now that we know the eligibility for an H1B transfer, let’s look at the process involved.
Step-by-Step Process for H1B Visa Transfer
The H1B Visa Transfer process is exactly the same as filing a fresh H1B petition with a new employer. The fundamental difference is that with an H1B transfer, the applicant does not have to go through H1B Registration Lottery again as they are technically counted towards the cap. Depending on your situation, you would fall into one of the above-discussed scenarios, you would need to meet those requirements to prove status and cap-exempt situation.
Below are the steps involved for an H1B Visa transfer:
- Step 1 – Find a Job at H1B Sponsoring Employer: You need to get a job at an H1B sponsoring employer. Once you have the job offer, you need to work with their attorney and indicate that you already went through the H1B cap process and are eligible for cap-exempt petition filing as an H1B transfer.
- Step 2 – Submit all H1B transfer Documents: You need to provide all the required H1B transfer documents to your new employer to start the H1B transfer process. The complete list of documents is listed below in a separate section.
- Step 3 – H1B Sponsoring Employer / Attorney Files LCA with DOL: Once you send all documents, your new employer or their designated attorney will file Labor Condition Application(LCA) with the US Department of Labor (DOL). LCA has the job offered, salary offered, prevailing wage, and other info. For more info, read What is H1B LCA, why file it, and info in it.
- Step 4 – File H1B Transfer Petition with USCIS: After the LCA is approved by US DOL, your new employer will file an H1B transfer petition with USCIS. Basically, they will file form I-129 with USCIS with all the relevant fees, supporting documents regarding the offered job, etc.
- Step 5 – USCIS gives Receipt Notice and Adjudicates: Once the H1B transfer Petition is received by USCIS, they will issue a receipt notice to the employer/ attorney indicating that they have received the H1B petition and for tracking purposes. Depending on the load of the Service Center and filing type either regular or premium processing, the H1B transfer petition is adjudicated by USCIS in a few days to a few months.
- Step 6 – USCIS Approval, RFE: USCIS either gives approval decision or requests for additional information as RFE, depending on the case, and makes a decision of either approval or denial based on the overall petition.
- Step 7 – Employee or Applicant Decision: Once the H1B transfer approval is through, now it is up to the employee or applicant to make the decision to join the company. Unless it is a Change of Status petition, the applicant has a choice to either join or continue with the previous employer…
Let’s look at the documents checklist for the H1B transfer.
H1B Transfer Documents, Checklist
The H1B transfer documents are pretty much the same as the regular H1B petition, but additional details like current status in the US and previous H1B details have to be submitted. Some of the below documents are optional or may not be relevant for the applicant if they are in their home country and have never traveled to the US.
Checklist of H1B Transfer Documents:
- Copy of Job offer letter from New employer, with details of the Job title, Salary offered and signed by both applicant and employer.
- Resume of the applicant.
- Copy of Passport
- Copy of I-94 ( if already in the US)
- Copy of H1B Stamp on passport ( if already in the US or have done stamping)
- Copy of Previous approved H1B petition ( I-797 approval notice)
- Copy of SSN ( if already in the US and worked before)
- Copy of 3 or more most recent Pay stubs/ pay slips ( if already in the US )
- Copy of W2 Tax forms from employer ( if already in the US and filed taxes)
- Copy of Bachelor/ Masters Degrees or any higher education.
- Education-related University Transcripts in a sealed cover.
- I-140 Approval copy ( if applicable)
- Academic Evaluation (depending on the country, degree and university awarded it, there may be need for education evaluation and submit that as well, check with your attorney )
- Copies of experience letters, if any from your previous employers
- Any other letters of recommendation ( if any – optional)
H1B Visa Transfer Fees, Cost
The H1B transfer cost for employers includes application fees that are paid to USCIS and other fees such as attorney fees. Depending on the size of the company, the H1B filing fee can vary anywhere from $1,700 USD to $7,900 USD + the attorney fee( if any).
| H1B Transfer Fee Component | Fee in USD | Additional Details |
| Base filing fee for I-129 | $460 | Standard fee for every H1B petition |
| AICWA Fee (American Competitiveness and Workforce Improvement Act of 1998) | $750
or | $750 – for employers with 1 to 25 full-time employees )
$1500 – for employers with 26 or more full-time equivalent employees) |
| Fraud prevention & detection fee | $500 | Needed as there is a change of employers |
| Fee-based on Public Law 114-113 | $4000 | Applicable, if 50 or more employees and more than 50% of employees are on H1B or L1 Visa status, required for new H1B filing and change of employers. Read H1B fee increase $4000 rule to check if it applies to your case |
| Premium processing fee (Optional) | $2,500 | Applicable only if the H1B Transfer petition is filed under premium processing. |
| Immigration Attorney Fee | Varies from $500 to $3000 | Varies by attorney and can be anywhere from $500 to $3000. If the employer has in-house immigration team, this may not be an expense |
H1B Visa Transfer Processing Timeline
H1B transfer includes many steps from filing LCA, to working with an attorney and processing by USCIS. Each of these has its own processing time, so you need to factor in time for all of these below.
- LCA Processing time: As part of the H1B transfer, the employer has to get a New Labor Condition Application (LCA) for the job role at the location of employment. Getting LCA with US Dept of Labor can take anywhere from a few days to 7 business days, it is online and is quite fast.
- Attorney or Employe Processing time to Submit Petition: Depending on the complexity of the petition, both employer and applicant require time to gather documents needed for the H1B transfer petition. It can vary from a few days to a couple of weeks or more depending on the speed to get documents like transcripts, education evaluations, etc. You need to factor in at least a couple of weeks or more for this step.
- USCIS Processing time for H1B petition: After the petition is ready and submitted to USCIS, the processing time with USCIS for an H1B transfer petition can range from a few weeks to a few months or sometimes many months. There is no required SLA for H1B transfer petitions filed under regular processing and USCIS can take their own time based on load. It is recommended to file it under Premium processing if you plan to work soon for new employer after the H1B transfer. If you file in premium processing, you will get a response in 15 calendar days. Check USCIS Premium Processing
Overall, you can expect anywhere from a few weeks to a few months, depending on if you choose premium or regular processing.
H1B Transfer FAQs
You can work for New H1B Employer after USCIS receives the H1B transfer petition and issues a Receipt Notice ( I797C Notice of Receipt). This working provision with USCIS receipt notice is as per AC21 regulation. Unless really needed, it is recommended that you get an H1B approval notice, before you start working to avoid any issues with the transfer.
No, you do not need the permission of your current employer to file an H1B transfer by a new employer. Any H1B Sponsor can file an H1B transfer petition, which is basically a new H1B petition based on your current approval notice, on your behalf without any permission from your current employer.
No, you do not have to inform your current employer that you have applied for an H1B transfer. Having said that you are still governed by your employer contracts for the notice period and other obligations that you need to fulfill when you leave the employer. So, plan the start date at the new employer and other things factoring in these things.
No, you cannot do an H1B transfer from Cap exempt employers like universities or non-profit research institutions to a cap-subject employer like general MNC companies. You will need go through the standard H1B registration and lottery process if you wish to do so.
No, there are no limits. You can have multiple employers apply for an H1B transfer on your behalf of you at the same time. In general, many work full-time for one H1B employer. But, you may work for multiple employers simultaneously, if working part-time. This is called concurrent H1B and you need to apply for the same to work for more than on employer.
No, there are no such limits, you can apply for an H1B transfer as many times as you want in a month or year.
Your H1B visa stamp dates are not fully relevant for the H1B transfer. You are eligible for H1B transfer if you were counted in cap once and have not used up all 6 years of time. Also, you are eligible for transfer, if you have an approved I-140 petition.
What has been your experience with H1B Transfer? Share your thoughts in the comments below.
Hi,
My employer has filed H1B for location A, but now the work location got changed and I will work in location B. I haven’t entered US yet.
I heard that I need new LCA & H1B amendment for new location before I enter US, is that correct?, and how long this process (new LCA & H1B amendment) takes?.
That is correct. It may take few months (2-4). LCA is required for sure, but there seems to be some confusion regarding the H-1 amendment. USCIS is planning to provide more clarification on this soon.
Thanks Saurabh
Hi,
I am going for an H1B transfer from Company A to Company B.
Company B has filed for LCA and may take another 10 days to be approved.
If I have to resign from company A during that due to any reason, Can I stay in US parallely till we receive the approved LCA for company B?
Thanks,
San
You will not be maintaining status while LCA is still pending. Once your H-1 petition has been filed and is pending, you can resign from old employer and start working for the new employer. But do not resign before B files I-129 petition.
In case you resign from A, and B’s petition is denied, then you will have to immediately file another transfer petition or go back to A or move to another immigration status or leave US.
thanks Sourabh. it really helps…
Hello Saurabh,
I have one more question.
I am getting H1 transferred from A to B.
B filed LCA on 01-OCT-2011. LCA got approved on 15-OCT-2011 and after that H1B petition filed on 16-OCT-2011.
Now, I have to provide 2 weeks notice period to Company A.
1) Can I work for Company after my Company B LCA is approved and H1 filed ( from 16-OCT-2011)
2) Can I work for Company A even after my H1B is approved for Company B.
How can best provide the two weeks notice period to company A?
1. Yes
2. Yes
Once the petition has been filed, you can either work for A or B. So you can resign anytime from A and after 2 weeks join B. The only thing to watch out is in case transfer is denied, you will have to go back to A or file H-1 petition to another employer immediately.
Can I join back Company A after joining company B.
Will the existing Visa for Company A will be still valid?
Visa from A doesn’t matter. Petition (797) from A is what matters. As long as A is ready to hire you back as employee and have not canceled the petition (USCIS wouldn’t cancel it unless A requests for it), you can go back and work for A. At times, employer request USCIS to cancel the petition when an employee resigns.
Hi saurabh,
I am in US working for client project from one of MNC company with H1B, recenlty my company asked me to submit H1B amendment due to some job category change. Problem is there will be chance of project contract might be over at Jan 2012. if I receive any RFE after Jan or during Jan, what will happen? Can we withdraw the petition that time? If we withdraw the petition means I want to leave from here immidiately. or Can we submit another petition of new project and stay here with receipt of new petition? Please advice me on this.
Thanks
If RFE is issued and the petition is re-filed then you can continue to stay and work in US on the basis of filed petition. As long as your petition is filed prior to I-94 and 797 expiration date, you can continue to stay and work in US.
Hi Sourabh,
I’m working with my empolyer X have a valid visa and I-797 till 2013.
I intend to work with them till Dec. My future employer Y has filed H1B transfer last week i.e. Oct 28th. Therefore, I don’t have receipt of notice or an approved copy of I-797 yet. Is it safe for me to travel overseas? My H1B transfer approval may come around by Nov 7th but I will be gone by then and will return around mid-Nov.
Is it safe for me to travel.? I hope it should be fine as I will be employed with my current employer and I have proper paper work during my date of entry i.e. Mid-Nov.
Please advice.
Thanks a lot.
Happy
That is correct. It should be ok to travel. As long as you are working for at least an employer (either old or new on the basis of H-1 transfer receipt), you should be fine. The only disadvantage I see is that your I-94 expiration date (the one issued at PoE on return) will be determined by the petition you would show to the officer. So if you show old petition, it would say 2013. If your new H-1 gets processed by then and you show that then it will be 2014 (assuming new employer is seeking I-129 for 3 years).
Thanks Saurabh. It was very helpful.
Unfortunately I won’t have my new petition handy so chances are that I may endup having Oct 2013 on my I-94. Hope it (non-availability of new petition) won’t create any problem as at this point only have H1B visa + I-797 (both valid) from my current employer. I intend to work for them till Dec.
Do you think I will be questioned upon arrival (Nov mid) on petition filed by my future employer? If yes, what docs do you anticipate they may ask for?
Thanks & regards,
Happy
I don’t think they will ask about the pending petition. They would most likely question about the current petition. So they can ask about the employer, your title, job duties etc.
Hi Saurabh,
I got my H1B approved & will be travelling to US in Dec’11 & joining Comp A.
In next 3/4 months I’ll leave A and join comp B (US based) once my H1B transfer is approved.
Now after working for B for say 8-10 months I need to travel back to India (on vacation), will there be any issue ? will I have to file fresh H1b to go back to US & work for B as my original h1b was for comp A?
Thanks in advance for reply.
regards
Ramesh
There wouldn’t be any issue as long as your employment w/ B is valid and your status has been maintained. You will have to go for H-1 visa stamping only if the current visa stamp has expired. If it is still valid, then you can use it for travel even after changing employers.
Thnx for reply saurabh , but I checkd with one of my friends today in similar situation he said h1b visa stamping needs to be redone as per current process.
Can you pls check and confirm ? And is there any alternative to avoid this as there is an uncertainity attached to it of rejection ?
regards
ramesh
I don’t think the rule has changed. As long as your H-1 visa is valid, you can use it for travel even when working for a different employer. Check w/ an attorney.
Hi,
I am in USA from past few months.I am working in USA on L1 visa.
Now i want to change my company to other company .So in this case the new company has to file a H1 visa for me.
So my question is this transition can happen any time during the year or i need to wait for specific month to change the company??
What is the average time it takes to change the status and what is the success ratio??
This can happen anytime the quota is open, which it is right now. If the employer files H-1 petition for you w/ COS (change of status), then you will have to start working for H-1 employer from the date mentioned in the approval notice. Processing may take 2-6 months, unless filed as premium, in which case it would be adjudicated within 15 calendar days. If RFE is issued, it can take longer time. Success would depend upon your H-1 employer credentials, proposed job offer, your profile and adherence to immigration laws.
So it mean no neeed to wait for any specific month .I can go ahead and look out for new employer any time in the year who can file H1 for me ??
Thanks
Correct, but again quota needs to be open at the time of filing. Quota is open right now and petition can be filed. It may not be open in Feb and cannot be filed then. Filing for next fiscal year will start in April.
Thanks Sourabh…
So how do we come to know the quota status whether it is opened or closed???
For this year when the quota is getting closed ??Is there any specific date or they will close it when they will run out of it??
It gets closed when they run out of numbers. You can see the latest quota counts on USCIS website.
Hey Sourabh…Thanks for this
i can see this info at
FY 2012 H-1B Cap Count
H-1B Regular Cap –65000
H-1B Master’s Exemption-20000
at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD
So what does this two quota means..Am i refering the correct website to see the remaining number??
Hey Sourabh,
what is this “H-1B Master’s Exemption ” 20 k number….
ok H-1B Regular Cap field i need to see right…does this contains both normal and premium H1B.
If this exists then i can apply in feb and get the visa in march(assuming the count is less than 65K).
Or for next yr i can apply in may and can start working for other company in june(if get processed)??
My previous response wasn’t attached to this thread. So re-posting it here:
You are looking at the right URL, but incorrect field. You should look at “Cap Eligible Petitions” column which is currently at 43.3K and 19.6K for the 2 categories.
65K is the total count allowed, and they have received 43.3K petitions against that count.
Master’s exemption is for people who have done graduation in US (USCIS has kept aside 20K petitions for those beneficiaries). The counts contain both regular and premium petitions.
Your employer can apply in Feb, but it may or may not get approved by March (processing time is 2-6 months for normal, and 15 days for PP but then any RFE issued can delay the process).
If it is applied in FY-13 (April or later), then one cannot start to work on H-1 until 1st Oct (earliest employment start date for the fiscal year).
Hey Saurabh..Really appreciated your comment but one thing i found contradictory in ur statement.May be it’s my understanding mistake..
May be you can correct me Here is my Doubt–
I want to change my L1(A company ) to H1(B company) in FY13 i.e after april 2012 then in any case i cannot start working before October???
But earlier you said that i can change this at any point of time???
Do i need to do this transition before March 2012 or other wise i need to wait for October 2012??
What I meant was it can be “filed” anytime as long as the quota is open. However, the actual date would depend upon whether that fiscal year has started or not. So if filed in FY-13, the start date cannot be prior to 1st Oct. If filed in FY-12, the start date would be the actual date on which it gets approved. Does that clarify?
Hello,
I am on H1B working full time for a well known US based retail company. I have been working for them since last 5 months as a senior developer.
Recently I was told that I can not be promoted until I get my EAD – which was a big surprise to me. I am on EB3 category and don’t expect to get EAD for next 7-8 years.
Are promotions while on really H1B illegal ?
I don’t think one can stop you from getting promoted on the basis of H-1. However, there are certain jobs that require additional clearance and companies do not hire H-1 visa holders for those jobs. If by getting promoted, you fall into one of those categories, then your employer can decide not to promote you.
Thanks Saurabh.
I do not fall under any categories that need additional clearance.
Basically my growth will be Senior Developer ( Current) -> Dev Lead – > Architect.
Employer’s logic is H1B petition was filed for Senior Developer role and thus they can’t promote me to higher roles. I did my research but don’t see any laws which restricts promotion for employees on H1B.
One can be promoted even when on H-1. If the duties for the higher role are similar to those for the current role, then you can be promoted. However, if duties are drastically different (for example from Dev to QE or IC to manager) then a new LCA and I-129 needs to be filed. Does your employer have an attorney?
Saurabh,
L1B to H1B premium processing
Application received by USCIS 08-SEP-2011
RFE received from USCIS 16-SEP-2011
RFE responded by emplyr 22-SEP-2011
Still the status shows as RFE .
How many days does it take for USCIS to repond back?Its already 3 weeks since we submitted the documents?Is there any process to follow up with USCIS to know about my exact case status?
Thanks in advance…
Even after the response has been received, they may take few weeks to 2-3 months to process. There is no set SLA, unless it has been filed w/ premium processing (adjudication within 15 calendar days).
Hi Saurabh,
Am working on L1B Visa.Employer A applied for change of status from L1 to H1B with cap exempt(I had a old H1B expired petition which is nerve used) using premium processing.An RFE was requested from USCIS and was responded back by employer A 3 weeks back.Am still waiting for the approval.Now as my L1B contract is getting ended soon, I do know at what point my H1B will be approved.
So am looking for employer B who is ready to file new H1B for me.
How far this will work out?Can I go for new H1B while the other process is in processing?
If I can go with new employer B then whether I need to specify about my already processing case?
Am in confusion state and seeks your valid guidance.
Thanks,
Krish
B can also file for cap-exempt H-1 for you. Your current processing wouldn’t impact B’s petition. I don’t know what was asked in A’s RFE, but if it was related to you, then similar RFE may be issued.
Also, once your A’s petition gets approved (assuming w/ COS), you will have to start working on H-1. Later, when B’s petition gets approved you can start working for B.
When is your I-94 expiring? B’s COS may not get approved if your I-94 has already expired.
Thanks for your prompt response.
Here are the answers :
->A’s RFE was related to the information about employer which was submitted by them 3 weeks back.
->I-94 validity was till Jan 2014 .
If B’s petition is submitted with cap-exempt H-1, will it not get conflicted with A’s petition which is also submitted with cap-exempt H-1.?
Can both the petitions from A and B get approved parallely?
Can I opt to go with either of the employer?
They both can go on in parallel, and one or both may eventually get approved. You can join either of the employer for which you have an approved petition.
Hi,
I have a doubt….Iam currently working for employer A and I have all pay slips and my H1B visa is valid till Nov 2012…I got an job offer from employer B and they are willing to do my H1B transfer…They have asked me the info so that they can initiate the H1B transfer….I have a emergency situation back in India and Iam planning for an India trip for 2 weeks…My current employer (employer A) is fine with my travel: These are my queries
i) Will i have any issue on Port of entry while the h1b transfer is going on….My present employer will not revoke my visa until i come back….
ii) what should i tell to my future employer (employer B)…..anything specific i need to let them know….As of today they have asked me to provide them the info reqd for h1b transfer and said it will take 2-3 weeks and asked me to wait until i let my current employer to notify about the new job opportunity….
Any help is greatly appreciated…
Thanks,
Sabari
Please read the 2nd point as follows:
ii) what should i tell to my future employer (employer B)…..anything specific i need to let them know….As of today they have asked me to provide them the info reqd for h1b transfer and said it will take 2-3 weeks and asked me to wait until i let my current employer to notify about the new job opportunity….and iam planning to travel india during the 2-3 week time
1. No issues. Carry recent employment letter and payslips from A.
2. Let them know that you will be travelling out of US. Usually companies prefer you to not travel out of US while transfer is in progress, but if it is an emergency then there is not much one can do. If B can wait to file the transfer after you return to US, then that is another option.
Thanks a lot saurabh for your immediate response….Asking company B to wait for my return (it us utmost a week to 10 days)…But if they want to proceed will it be any issue bcos as of now they said it will take 2- 3 weeks(i believe they are not going for premium processing) and I will be be back for sure with in that period and they said to provide the notice period for company B only after the h1b receipt….this is the clear picture…
can i travel?
B can start the prep-work while you are out of US, and then file the petition once you return back. The prep-work itself may take 2-3 weeks (LCA, documents etc). So B can do all this and be ready to file the petition once you return back and provide them a copy of latest I-94.
I have been working in U.S. for past 4 years on L1-B sponsored through an Indian Company A. I got another offer from a consultancy B to sponsor H1B. Got a project and consultancy has started processing H1B in premium with COS from L1 to H1. Expecting approval in another 5-10 days. Meanwhile, I got a full time job offer from Company C and I am interested in it. Here are my questions:
(1) Once my Visa status changes from L1-H1 , is it legal to continue work with Company A to serve at least 1-2 weeks notice period . (Assuming I’m resigning on the same day of H1 approval)
(2) Is there any way, I can continue on L1 with company A even after my H1 approval (other than re-entering country on L1) for about a month till comany C sponsors my H1B. Because, I am interested in joining company C, not company B.
(3) Company C is going to take 3-5 weeks for background checks, and Visa processing if I accept the offer. My Visa status will change from L1 to H1 in another 5-10 days through company B sponsored H1. Do you suggest me joining company B, work for 1 month and resign from there (settling H1B processing fees) and join company C ?
(4) What is the best way I should move ahead here without any long term impacts (visa stamping or gc processing) .
Kindly suggest.
Thanks,
Lakshmi.
1. Legally, you should start working for B from the date mentioned in the approval notice. If you decide to stay w/ A for 1-2 weeks then you will be taking a risk, which may fire back in case USCIS questions about that period.
2. No way other than re-entering US on L-1
3. Yes, that is doable. C can apply for H-1 transfer and submit recent paylsips from A and B as proof that you have been maintaining status while on L-1 and later on H-1.
4. Read (3).
Thanks a lot Saurabh for your inputs. With respect to question (3) – Can company C apply for H1 transfer with only payslips from Company A and without payslips from Company B? There are high chances I would be working with Company B for just 2-3 weeks when company C files H1 transfer. so payroll may not even have processed. Is that fine?
Let’s say if payslip from B has not been generated at the time C files for your petition. In this case you can submit the payslips from A. If USCIS needs payslips from B, they would issue RFE and ask you to submit them. You can submit B’s payslips at that time.
Even if you work for just 2-3 weeks for B, make sure you get paid for that period.
Hi Saurabh,
You are doing a great work.
My query is almost similar to this post…with slight difference. In my case Company C may file H1 transfer earlier may be within 1 week of my H1 approval. So in that case do I still need to join Company B for a week or so.
I will re-iterate the whole query:
I have been working in U.S. for past 3 years on L1-B sponsored through an US Company A (but belongs to its offshore office). I got another offer from a consultancy B to sponsor H1B. Got a project and consultancy has started processing H1B in premium with COS from L1 to H1 (This H1 is not visa exempt). Expecting approval in another 15 days. Meanwhile, I would like to negotiate with my current employer – Company A to move me permanently on to their US payroll. If they agree and interested in filling the H1 transfer after the H1 from Company B got approved.
(1) Once my Visa status changes from L1-H1 , is it legal to continue work with Company A to serve at least 1-2 weeks notice period . How can I serve notice period? (Assuming I’m resigning on the same day of H1 approval and my current company – Company A doesn’t agree to move me permanently on their US payroll)
(2) If Company A agrees to transfer my visa to them but only after my H1 (cap included) visa is approved by Company B. Then My Visa status will change from L1 to H1 in another 15 days through company B sponsored H1.
Do I need to join company B, work for some time and resign from there (settling H1B processing fees) and join company A ?
(3) I know you can start working for an employer, if he files an H1- transfer for you (Status – H1 transfer pending). But in my case there may be a gap of 4-5 days between that initiation. So technically i would be out of status for 3-4 days. Will it matter? There is no point in joining Company C for a week.
1. Once COS is approved, you are supposed to work on the new status from the approval date mentioned in the notice. However, if you continue to work on old status, then that’s a risk you will be taking. The longer you continue to work on old status, the greater is the risk. I would assume that a week on old status is still ok. If USCIS questions about this period, then you will have to explain them why you did that and it would be up to USCIS whether to buy it or not.
2. If A files for H-1 transfer soon after you receive B’s approval notice, then you can start working for A from the date USCIS receives the transfer petition. In other words, work for A while COS hasn’t kicked in; work for B after COS kicks in but A hasn’t filed for H-1; work for either A or B after A has filed for H-1.
3. 4-5 days isn’t a big deal, and I doubt if USCIS would question it. In case they do, your attorney can try to reason it.
Thanks Saurabh,
One more thing.. this is regarding stamping.
Every time I change a company in US and go back to india, do I need to go for stamping all the time or just the first time.
For example: My H1 is approved from Nov 1, 2011 onward with company A and I started working with company A from 1 Nov 2011 and remain in US till 1 March 2012 and then go back to India.
Now if I have to come back I need to get my visa stamped. Suppose I did so and came back to US in April 2012 and then make a job change. to Company B and worked with them for 2 months here in US.. now suppose I again go back to India in July 2012 and want to come back in August 2012..then do I need to convert my visa stamp from Company A to Company B.. or I can travel back to US without bothering about stamping.
I have have the petition from Company B then could there be any problem at immigration in US in August 2012.
Thanks,
Once your visa has been stamped in the passport it is good until its expiration date. You can change several employers in b/w, but no visa stamping is required. Once your visa stamp has expired and you travel out of US next, you will have to get it stamped by carrying employment documents from your employer at that point of time.
Thanks Saurabh,
One more question:
My wife is on h4 as of now, if she files H1 and it gets denied then she still can stay in US? In that case her status will remain as H4? Does h1 denial affect her h4 stamping if she goes alone for stamping?
If her H-1 is denied, she can continue to stay in US on H-4. Her H-4 status wouldn’t be impacted. Also, the stamping wouldn’t be impacted unless H-1 rejection was due to non-maintenance of status (i.e. spouse’s missing payslips and/or W-2).
Hi Saurabh,
I have another question for you.
I am L1 here in US with my wife being on L2. My H1 is approved from 11/14/2011 – 04/30/2011.
We applied for L2-EAD for my wife and an approval came in on 11/05/2011.
Considering my wife will move on to h4 from 11/14/2011 onward, Can she work on EAD after that or her EAD will become invalid after she moves to h4 status.
She should not work on EAD as she is now on H-4 and not L-2.
Hi Saurabh,
Once again I have 3 questions for you.
My wife is on h4 visa and have applied for h1 visa (Under cap) from company A. Suppose if her visa is approved from 1st Dec 2011 and she don’t want to join Company A but like to join another Company B then:
1. Can Company B file a H1 transfer in this case. Remember my wife never worked for Company A and previously she was on H4 so she doesn’t have any US pay stub.
2. Suppose Company B transfer gets rejected but my wife doesn’t join Company A as well. In this case does she becomes out of status or her h4 status will kick back in.
3. Can we convert H1 status to H4 status without going out of US. This may be required if she doesn’t get any other employment other than Company A but never joined them. So may be after 2 months we can apply COS from H4 to H1 (Cap Exempt this time)
1. H-1 transfer can be applied w/o payslips if B’s petition is filed even before 1st pay period is over. She can then immediately join B and start working for them. If at least 1 pay period has elapsed by the time H-1 transfer is applied, then USCIS will ask for the pay slip for that pay period.
2. She will have to either file COS from H-1 to H-4 or go out of country and enter on H-4 visa. The former may require payslips to be submitted for the H-1 period. The latter might be easier if she already has H-4 visa stamped in her passport.
3. Yes, COS can be applied but H-1 pay slips need to be submitted. Remember, on H-1 she needs to be working all the time for an employer for which she has an approved 797 or a pending H-1 transfer. Benching puts one out of status.
Hi Saurabh,
Im currently working for Company A and got an offer from Company B. Company B has applied for my H1B transfer. If I join company B based on receipt from USCIS (before approval), what happens :
a) The H1B transfer goes into a RFE – Will I be out of status (working for Company B till the time the transfer is under RFE.
b) Am i legally allowed to work for B during the RFE period.
c) What are the risks involved in the approach
Thanks in advance for your response.
Indu
1. You will not be out of status if B’s petition go into RFE
2. Yes, you are
3. If B’s petition gets ultimately denied, then you have to go back and start working for A, or have another employer file H-1 transfer immediately and start working for them.
What happens if your visa transfer doesn’t get approved or you have to go back to India?
Does that mean that I cannot travel back to USA by filing a new cap-exempt H1b visa?
Also what happens in case of layoff? Can the employee go to India and file a cap-exempt H1b visa? If not, what are the options available in case of layoff?
In case your H-1 transfer is not approved or if you have to return to India, another employer can still file a cap-exempt petition for you. This is on the basis of your original approved petition.
Even in case of layoff, another employer can file a cap-exempt petition for you. As long as you have been maintaining valid legal status while in US, you should be fine.
Hi
I have worked in the U.S with Company ‘A’. Currently, I need to travel back to India. I am planning to quit the job here and join a Company ‘B’ in India. I just wanted to know if Company ‘B’ located in India can utilize my H1B. As I will be quitting my job when I am here in the U.S, will it make any difference? I believe Scenario 4 is nearer to this question, but wanted to explain my current situation to know your thoughts.
Thanks,
Vishak
B can file cap-exempt H-1 petition for you and once approved, you can work for B in US on H-1. In other words, H-1 transfer is possible even if you leave A and then move back to India.
This is assuming B has US operations as H-1 can only by filed by employers who have US offices or are US based.
Hi Saurabh,
Thanks for the quick response, one more question, if the petitioning company is A, but the offer letter is from company B, could I apply the H1B visa stamp with I-797, I-129 and offer letter as I havn’t never landed in US?
Thanks/David
You can go for H-1 stamping only for the company for which you have an approved 797 petition. I am not sure if you B would be the client and A would be the employer or if B would be the employer and A will not be in the picture. If former, then you need 797 from A and go for stamping carrying documents that show that A and B have a contract and you will be providing services to client B through A. If latter, then you need to have a 797 from B.
Does that answer your question?
Hi Saurabh,
Thanks for good answer, in my case it is latter one, A is the original company on approved 797 petition but it was merged by another company C and A will be logged off by end of this year, hopfully B will be the next employer and A will not be in the picture, so seems I have to process transfer from A to B first.
Thanks a lot/David
Hi Saurabh,
Appreciate your help in advance.
I have a question for you, I have got the H1B approval notice and it is effective now but I have not applied the H1B stamp, I am still staying in my home country, may I and how can I process the H1B transfer to a new employee without working for the current employer? Is it legal to transfer to B without working for the petionning company A as I cannot get the pay stubs?
Thanks a lot/David
You can do that – have another employer file H-1 petition for you and submit existing H-1 petition as proof that you have already been counted in the quota (this is what you are referring as H-1 transfer). As you have never been to US, you don’t need to submit any payslips etc from the old employer.
My H1B is effective now but I have never landed in US, may I apply B1 visa to travel to US for business issues?
Thanks/David
Yes you can if you have business needs to travel on B-1. You may be asked about your H-1 during interview and you can let them why you are going on B-1 right now and not on H-1.
Hi Saurabh,
I am working for Company A in H1b visa, got I-94 extension and is valid till Jan 2012. Company B applied for H1B transfer and was approved on April 2011. I did not join to Company B and continued with Company A. Company A applied my H1 extension. After got extension approval till 2014, traveled to India, got stamped, came back to US. Now planning to join Company B. Will the already approved H1B transfer valid to join now? I have got new I-94 now.
Thanks
If the 797 from B is still valid, then you can join B on H-1. No new transfer/petition needs to be filed.
Hi,
My friend is currently on an H1B status working as an RN, i filed for an extension 2 months ago (August) but has not received response from USCIS. I have friends who have not received response too from more than 5 months.
I plan to apply for Student Visa on a nearby university. I have been accepted but they want me to give up my H1B. School starts Jan 2012. My H1B will expire this November. What are your thoughts, I want to stay here for as long as legally possible?
a. Worst case i dont here from USCIS past November, I read in your post i can stay until 240 days while working pending my H1B extension.
b. In the event that I get denied, can i apply for change of status to F1? Then start school?
c. The school advises me that should my H1 expired, I need to go back to my home country and they will file for my F1 (of course it will take years)
d. At this point my H1B is not expired, should you advise me to just give up my H1B and file for F1 (that means giving up work)?
e. Or should i continue on my H1B while at the same time attending school (with pending H1B) then should i get denied (wort case), can i apply for change of status to F1?
Many Thanks.
a. Yes, and that time starts from 1-94 expiration date.
b. If it gets denied, your I-94 would have expired by that time. Filing COS to F-1 may not get approved.
c. That seems correct as your I-94 would have expired. So you will have to apply for F-1 from your home country
d/e. Depends what you want to do. If you want to continue to work, then filing COS to F-1 will prohibit you from doing that. Here is my suggestion – upgrade your petition to premium processing (costs $1225 more), but USCIS would adjudicate it within 15 calendar days. If H-1 gets extended then all well and good. If it gets denied, you will still have time to apply for COS to F-1 and start school in Jan. However, if RFE is issued during extension, then might extend the 15 day window.
Let me know if you have further questions.
Hi Saurabh,
I have a valid H1b visa till July 2012. My employer also filed an LCA valid for same period when initially filing the visa. Later they filed the LCA for the client location before I travelled onsite. The new LCA is valid only till Feb 2011. This means that presently I don’t have valid LCA for client location. However, my visa and I-94 are valid till July 2012.
I have now applied for visa transfer to new employer who has already received certified LCA as well as H1B receipt(approval of H1b not received yet). I am presently serving notice period with original employer.
Do I need to to ask current employer to extend my LCA or would I be ok since I have already applied visa transfer? Will this affect the chances of the new H1B application from being approved?
If you are continuing to work for the old employer, then they need to have an approved LCA for that location. If not, then one needs to be filed.
If you have started working for the new employer on the basis of receipt notice, then you don’t need to worry about the old LCA.
I think it wouldn’t adversely impact your new petition. USCIS usually asks for old petition and payslips which you have. I haven’t seen many cases where they have asked for old LCA. But then there is always an associated risk.
I was in OPT, got my first time H1B on May 31st, I had a H1 Transfer with premium processing on August 8th to another company, August 11 i had a query to show client letter and most recent paystub, my new employer forgot to submit my most recent paystub with query documentation. I checked the status online on sept 6th. It shows my H1b was approved,but wen I received the I-129 notice on Sept 12th, It says it is denied due to failure of submission of showing proof of residing in US with valid status for last 2 months. They said currently i am out of status and need to leave the country within 33 days. in the same letter it is also mentioned that if I have any proof to prove myself, then I can appeal for it. I am able to get my most recent pay stubs, the big question I have is am I legally eligible to work in the mean time I submit the proof or can I start working after I submit the proof of my pay stubs or am I supposed to wait till my H1 is approved, I really confused as every other person is telling me a new answer any help will be greatly appreciated
Hi Saurab,
I got my H1B on oct 2008 and changed to H4 on apr 2009 and my visa expired this sep 22 /11,can i go ahead and apply for H1B transfer and extension thru my employer .what are the chances ?can i get my H1B ?I dont have a job and no one is coming forward to offer job for H4 ,what can i do in this situation?pleasei need your suggestions …..i dont want to transfer to another employer also ,
The employer can file for extension. However, for extension to go through you must have a client/project ready (assuming your employer is a consulting company). Once the extension is approved w/ COS, your status would be H-1 and you will have to start working on H-1 and getting paid the regular salary.
H-1 transfer is referred when a different employer wants to file a petition for you.
Let me know if you have additional questions.
Helloo.
I am looking for a very legal point on US law. A friend of mine went for L1 Ext but recieved RFE and he submitted the calarifications in stipulated time. I would like to know how long can he stay in US, as its almost 6 months from RFE date. Please let us know.. Thanks.
He can stay up to 240 days after his I-94 expires. In case L-1 extension is still pending after that 240 day period has elapsed, then he has to leave US. In case L-1 extension gets denied, prior to that 240 day period, then again he has to leave US ASAP.
Hi Saurabh,
I have a valid h1b visa which I got stamped recently and I have never been to the US. This is a new employer offer, and I was planning to join my US employer in the next two months. But now my US employer is not confirming the joining date and he is telling me that he is waiting for the client to get back. My question is can my current employer file a h1b transfer for me, because they have some job requirements in the US right now.
What is the process if they can file for transfer, do I have to appear for visa interview if the new petition gets approved, or just the petition approval would do.
Your current employer can file a new H-1 petition for you and submit the existing petition as proof that you have already been counted in the quota (this is what people loosely refer as H-1 transfer). Once petition is approved, you can travel to US. You don’t need to get H-1 visa stamped in passport as long as your current visa stamp has not expired.
Thanks Saurabh.
Just one more follow-up question. Suppose my current employer files a new H1 petition as you have mentioned, and then that petition gets denied/rejected for some reason, will I still be eligible to join the US employer who filed my earlier petition and which was approved. From my understanding, I can join them, just wanted to confirm.
Just as a comment, not to flatter you, I have already taken help from you a couple of times on this forum, I am amazed by the promptness and the simplistic manner in which you go about your replies. Hats off to you and your team and Thank You.
Yes, your old petition would still remain intact and you can use it to travel and work for the old employer.
Thanks Abhi for the appreciation :). I am glad that I could be of help and spread awareness about the immigration laws. Do let us know if you have any other questions.
Thanks Saurabh. This will always be the place I would turn to, to clear my doubts.
Hello,
I have a question regarding H1 transfers and would greatly appreciate any advice. I am working with company A. I got an offer from B and H1 transfer is in progress but there is no decision yet. I have not quit A yet. Meanwhile I got another from C. There is no extension of H1 in my case, transfer only. The questions I have are:
1. Do I need to wait for H1 transfer to B to get approved before I apply for H1 transfer with C. I assume this is not required but just want to be sure.
2. Would paychecks and I797 from A be sufficient to transfer to C?
3. I have informed B I will not be joining but not sure if they cancelled the H1 transfer. If I start my transfer with C and join after getting the receipt number from USCIS, does the result of my H1 transfer with B (acceptance/denial) effect my H1 transfer to C in anyway?
I would greatly appreciate any help.
Thanks in advance.
Bhavesh
1. You don’t necessarily need to wait for B to get approved.
2. Yes, as long as their is continuity in getting paid (either from A or B).
3. It doesn’t
Hi I am in a similar situation as bhavesh except I already got a h1b transfer receipt from B. Now company C has extended an offer to me and is willing to start transfer. I am not sure which will be by most valid i797 as I am still under payroll of company A. I have not quit still.
Let me know if I understood your situation correctly – you are working for A, have transfer receipt from B and now want C to apply for H-1 transfer for you.
If my above understanding is correct, then C can file a new petition and submit your A’s petition and payslips from A. In general, when applying for transfer, the new employer needs to submit an already approved petition and most recent payslips (either from A or B).
Does that answer your question?
Hi Saurabh,
This website is very useful. Iam working in L1B from Sep 2009 to till date with Company A. And also i have H1 petition approved in July 2010.
Company B is offering a job, Can I transfer the H1 petition to company B and start work ? Note, I have not worked in H1 till date, its only approved petition.
Yes, they can do that. BTW, I am assuming your H-1 petition was approved w/o COS i.e. no I-94 attached to the bottom of it. Considering it to true, B can file a new H-1 petition for you and submit L-1 payslips as proof that you maintained legal status and old H-1 petition as proof that you have already been counted in the quota.
Thanks Saurabh for replying. Yes its filled w/o COS. So can’t I use the old petition like transfer ? Do Company B has to file new petition ? I thought they can transfer my old petition.
H-1 transfer is a very loose term. What I mentioned above is H-1 transfer. What happens actually is that B would file a new H-1 petition for you, submit old petition as proof that you have already been counted in quota and wait for USCIS to approve it. Once B’s petition is approved w/ COS, you can start working for B. Note that you cannot work for B until the petition gets approved. Does that clarify?
Thanks Saurabh for clarifying.
Hello ,
Post is great . I have a question regarding H1B transfer.
My colleague got H1B approved petition in 2006 from X employer in india. He never used that petition for stamping or never worked on that petition. Petition is expired after 3 years in 2009.
Is it possible for him to use this petition as a Xfer to new employer Y , looking into the clause that he might not be subjected to Cap as H1B petitions can be used for 6 years . If so can he get copy of 797 from USCIS by showing receipt number & passport?
Appreciate your help on this.
When the quota is wide-open why would he want to use such an old petition for transfer? This comes in handy only when the quota is not available. Also, as it’s almost Oct, you won’t gain anything from that respect as well (when filing for transfer one doesn’t need to wait for Oct to start working, while a new applicant will have to wait especially if it is filed b/w Apr and Sep).
Thanks for your reply Saurabh.Actually he is currently in india & might be relocating to US on H4 visa after Jan , so he might need use this petition to start working immediately, since that year H1B quota might not be available . Could you please let me know whether its feasible to file a Xfer for an unused expired petition (2006).
He cannot start working immediately. In case he enters US on H-4, an employer (old or new) will have to file H-1 petition for him along w/ COS. Only once the petition has been approved along w/ COS, can he start working on H-1.
As the petition would be filed after Jan 2012, there are chances that quota may have exhausted by then. So it would be good to be cap-exempt at that point. I think (not sure though), that you don’t need to be counted in quota again in case you have been counted once in last 6 years. If that is true, then your friend should be fine; else he will have to wait for next cap (assuming quota gets exhausted by the time H-1 is filed).
Hi,
I am in US on H1B with employer A from past more than a year. Now, employer B wants to do my H1B Transfer. Due to some personal issue I have to go fly to India for a month and at that time my H1B transfer will still be in progress. Though I have valid H1B petition and stamping of 11 more months.
Q1: Will there be any issue that I am not in US during my H1B transfer in process??
Q2: Assuming my visa gets transferred while I am in India….while returning will there be any issue at the port of entry keeping in mind that I have not starter working for employer B and my employer A visa is still very much valid for 11 more months??
Any guidance on the above will be very helpful, thanks.
1. No issues, it can continue
2. No issues. Make sure you carry recent payslips from A, and approved petition from B. When asked you can tell them that you have been working w/ A until you left US and now intent to work for B. Also carry remaining employment documentation related to B. The PoE officer should issue you an I-94 based on B’s petition.
Hi Saurabh,
Thanks very much for your reply.
With regard to Point 2, Actually I do not intend to tell anything about the employer B because I intend to decide on joining employer B only when I return back to US. Thus please let me know the following:
Q1: Will there will be any issue if I mention only about my employer A and do not mention employer B at all at the port of entry??
Q2: If the PoE officer issue me an I-94 based on employer A’s stamped visa on my passport, what will be its implications??Do I have to leave US as per my I-94 date even when the petition B is valid till say 2014??
Q3: If I intend to show the petition from employer B at the PoE do I have to go for stamping while I am in India??
Your response will be deeply appreciated.
Best Regards
LAvi
1. No issues
2. They would issue I-94 based on A’s petition. When is their 797 expiring? You will have to leave US once that I-94 expires or file for extension through A or B depending upon who you are working for at that time.
3. No
You should show the petition of the employer to intend to work for immediately after re-entering US. You can then decide to work for either employer as you would have approved petitions from them.
Thanks Saurabh.
That clears most of my doubts…I am not sure where can I see the date for 797 expiring….if it is same as petition date or the I -94 date then it is getting expired in august next year.
Best Regards
Lavi
Hey Saurabh,
My bad, i did not realize that it is 797 B that shows the petition expiration date.
My 797 expiration is in August 2012….and same is true for I 94 as well. Please let me know if you foresee any issues…
Best Regards
Lavi
So if you show 797 from A, you will receive I-94 until Aug 2012. So the employer would have to file for extension around that time.
Hi Saurabh,
I’m currently working for Comp A which is a non-profit (nonreligious) for the past 4 months now on a new H1B started in April. I have an offer from Comp B which a a non-profit (religious) organization. Comp B wants to file my H1B transfer and adjust to PERM using form 1-485 at the same time. My questions are:
1. Should Comp B file my PERM using 1-485 or 1-360 as a religions worker, with the same job title, description and title as my current job with Comp A?
2. Can I transfer my current H1B from Comp A to Comp B without, Comp B filing a LCA for the same job title?
3. Can Comp B file for me directly as a PERM with a different job title, description and wages? If yes, how can they do so?
1. Sorry, don’t know about it
2. For H-1, a new LCA is always required. So B needs to file a LCA and then H-1 petition.
3. Don’t know
Hi Saurabh,
My situation belongs in Scenario 3 category, I am working for Company A, Got an offer in Company B. Company A applied for my H1 Extention, its not yet approved.
Company B wants to apply my H1 Transfer,
Is there any Any problem if Company B apply for transfer?.
Can I file multiple (two ) transfers at the same time?.
Thank you
Yes, that is possible. You can then decide to join either company A or B depending upon what all petitions get approved.
Hi – I am on H1b from 2010 Oct till July 2012 (As per my first LCA in vis & I-94). But then I transferred to another client, transferred LCA which expired this July 31 2011. I noticed that my company has created new 100 slots LCA from the last date of precious lca but I am running out of LCA for 20 days. My questions are
1) My employer (100 slots out of which 7 used) has new LCA for this client which covers all employess who landed recently. So I should be changing to this new one. But the new one has higher wage (minimum) than older one. Will this require H1b ammendment? But my job responsibility ,client location all remains same. Please advise
2) And as I am out of LCA for 20 days will it be an issue to get newer one. Am I out of status ?(H1 visa stamp/I-94 valid till 2012).
Please let me know!
1. I don’t think amendment is required. Are you getting paid more than the minimum wage mentioned in the LCAs that other are receiving now?
2. New LCA needs to be filed before expiration of the current LCA. When is your 797 expiring?
1)Ok. Old LCA in which I had minumum wage as my pay out but the new Blanket LCA has minumum wage more than what I get. In other words LCA (LCA A) in which I was for last 2 years has lower minimum wage than what is specified as minimum wage in new LCA (LCA B).
For current Client location –
LCA – A : Oct 2008 -July 2011 ( I am in this LCA)
LCA-B : OCtobe 2010 – July 2013
*Company has valid blanket LCA but I am not into the new one.
2) MY I797, I94 and visa all expiring July 2012 as that was done with my very first LCA which was expiring in Julyy 2012. But before I travel I did transfer to client for LCA-A and then entered US.
You need to ensure that there is a valid unexpired LCA for your job title and your location on which you are working. When it expires, an extension needs to be filed.
Also, you mention blanket LCA. Are you sure that is for H-1? AFAIK, Blankets can be filed only for L-1 and not H-1.
So is that I am out of status right now as H1 transfered LCA expired last moth?
I see my company has approved LCA till 2013 but I am not in that, as I was in previous LCA.
how long i can be out of status if so..Is there any grace period ? I do have my petition I797B valid till 2012
Please help
You are not out of status. That is determined by I-94 which is still valid.
Talk to your attorney and ask him how to proceed. LCA approval takes 1-2 weeks, so it may not out turn out to be a big deal. Attorney would know better.
Good luck!
This happened smoothly and I am good now. Thanks !!!
Good to know that. Good luck for future!
Hello,
I have a situation here. I am working for company AA and have valid H1B and visa stamped until next march. I am planning to travel to India this November and meanwhile I am planning for H1B transfer to company BB. Can I travel and come back based on existing valid visa and new H1B from company BB without having to go for stamping again? (even if my current company AA cancels my H1B after the joining company BB…)
Thanks for your responses…
As long as your visa stamp has not been canceled (physically on the passport) and has not expired, you can use it to return to US. You would also need an approved unexpired petition from the employer you plan to work for.
I’m working on L1 visa for company A .I’m planning for L1 to H1 conversion.
Problem is i get perdiems not salary,however I do get salary in India.My company takes care of all income tax on my behalf.So now I don’t have pay stubs and W2 which are required for conversion.
In my case ,what is the procedure I need to follow for conversion of L1 to H1 if some company B sponsor for me.
You are not maintaining your legal status by getting paid regular salary in US on L-1. Your employer is violating US laws, and is deteriorating your chances of moving to H-1. Talk to an attorney on how to go for a successful H-1 petition w/ COS.
Hi Saurabh
After changing from Company A to B and running one month payroll from Company B. Is it ok if I switch back to company A. Kindly please let me know.
Yes, you can.
Hi Surabh,
My case is pretty different and complex. I have a H1 which is valid till Sept 18th 2011.I travelled to US in Mar11 and stayed there for 45 days. Due to personal emergency i came back to India. Now i got a project through different employer. Is it possible to do a tranfer and extension with my new employer without any paystubs?
Quite difficult. There is a strong possibility that you will be asked for payslips for those 45 days. You should ask your employer to pay you back wages, and can complain to DOL on WH-4 form if he refuses. Consult an attorney on how to correct the status, and extend/transfer the H-1.
Thanks Saurabh
Hi Saurabh
I am with my Company A from past 7 years and recently joined with company B before 2weeks with approved H1b. Now company B is not accepting to file GC process and I still did not fill up I-9 form. But without completing I-9 form I will not get my pay.
Now I got a new project with Company A again who holds my GC still and they are also asking me to fill I-9 form for the new project which is going to start in next month.
One month payroll has been run from Company B. Is it ok if I switch back to company A without informing them regarding the change and are there any issues involved here.
Kindly please make me aware of this information. I would greatly appreciate your response. Thanks in Advance.
If the petition from A has not expired yet, then you can go back and work for A. Make sure you have payslips for all the months (either from A or B depending upon who you were working for). When you go back to A, you don’t need to inform B; although you may still want to resign and take care of any legal contract you signed w/ them, if any.
Hi
I am working for a A Company now from past 2 months and I have only 3 semi monthly payslip’s generated till now. Is it possible for me to do a H1B transfer to some other company ? or do I need 3 full month paychecks ?
Please clarify …
THanks in adavance
Poorna
If you entered US 2 months ago, then you can still go ahead w/ transfer w/ those 3 payslips. If you have been in US for more than 2 months, then you may be asked to submit payslips that are 2 months old. In this case, it better to have more cushion of payslips before applying for transfer (BTW, staying in US on H-1 and not getting paid is violation of your visa terms).
Thanks for the clarification.
I believe you could say, you were on unpaid leave during your “No pay stub” time frame. However , you are legally entitled to ask for your pay stub from your employer from the day you landed in US. On H1B visa you can not sit so called on bench.
Hi,
heres my case,
I was working with Company A when they applied for my H1B Visa, after the CAP selection I got the Visa Stamped, for the first two yearsi did not travel at all, and in the last year of the Validity I was in US for 8 months, now my Visa is going to expire on Aug 25th 2011 and I am currently in India. also couple of months back I resigned from Company A and Joined Company B. and Company B wants to have my H1B transferred. My Questions are
– How can I know whether or not my ex employer has not yet filed for a cancellation.
– I have read in some sites that I94 is a mandatory document, but I dont have that as I have moved out of US.
– if my Petition is still valid, then what is the process to have my petition Transferred.
– and once the Petition is transferred then will I have to go for a new Stamping?
Thanks in Advance, looking forward to a reply from your side.
Regards
Hi Saurabh,
I am going to apply extension for my H1b Visa which is going to expire.Can i change my role from tester to developer while applying H1b extension?
Another question:
If company B is applying H1B transfer for me.Can they change my role to developer from tester?
Thanks for your help in advance.
Yes, you can change the role. The new role should be mentioned in the LCA, and you may have to show what experience/education you gained that now qualifies you for the new role. This holds true for both extension and transfer.
Saurabh,
I got approval without the client letter. Is client letter required surely for stamping?
Please let me know.
Regards
Ramesh
It’s always good to have that when going for stamping. It is not necessary that if the client letter wasn’t mandated during petition processing, then it wouldn’t be required during stamping. Besides, a client letter is as good as a “must” when working for a consulting company and going for the stamping.
Hi Saurabh,
One more question :
I have applied for LCA and h1 extension and got it approved yesterday for 2 years. I have to go to India in December. If I change the client now, i would apply for LCA again.
1. Can i go for stamping with new LCA or do i have to apply for extension again with new client and then go for stamping? Is there any new rule like that?
2. My old H1 visa is valid till this Sept 10th 2011. Can i go for stamping in Canada before that date? If the stamping goes fine, i would not have any problem. If unfortunately, there is a problem, can i enter the US again with old visa validity and stay in US with the extension approval till 2 years ( new approval date is 2013 sept)?
Please let me know regarding the above questions.
Thanks
Ramesh
If the new client is located at a different location, or if you will be working in a different role, then a new LCA is required.
1. New LCA (if required) and current extended H-1 petition should be sufficient.
2. I am not sure if visa can be stamped even if the old stamp hasn’t expired yet. If that is allowed, it would mean you will have two unexpired visa stamps in your passport for same visa classification, which I haven’t seen or heard before. So I am not sure if it is possible.
Hi Saurabh,
We applied for extension in Premium process. When i checked mine, i got decision and got a email that my h1 got approved for 2 years. My wife’s h4 is still in initial review mode. Can i shift the client now? Will they do any checking even after the approval?? What is post decision activity? How much time it takes? Can i give notice that i am resigining this monday?? Please let me know, would there be any problems if i shift now?
Thanks
Ramesh
You want to shift to a different client, and not employer, right? Assuming your response is yes, yes you can change the client. A new LCA needs to be filed if the client is located in a new location or you have a different role. But nothing needs to be done on the petition end.
From a petition’s beneficiary’s perspective, post decision activity means waiting for the approval notice. As long as you are w/ the same employer, you can resign from the client site. Remember to continuously getting paid on H-1, irrespective of whether you are working for 1st client, or 2nd client and moving from one client to another (unless you have taken reasonable leave of absence from the employer).
Let me know if you have additional questions.
Hi Saurabh,
Here is my case.
I have H1B visa from Company X valid from Dec 2007 to July 2010.
So my H1B from Company X expired last year July 2010.
Now I am with Company Y. Company Y wants to file a new Out of Cap petition on my existing H1B which expired.
Q1) Is this possible?
Q2) How long it can take for the approval of new petition?
Q3)Is premium H1 processing option possible for my case?
Q4) Do I need to wait for Oct 1 for stamping or I can select any available date?
Thanks in advance,
Sam
1. Yes
2. 2-6 months. Premium processing would take 15 days. Also, if RFE is issued, the process can be delayed further.
3. Yes
4. You can go anytime after your petition is approved.
Did you travel to US on your old H-1? If yes, then your new term on H-1 cannot be more than 6 years minus the time already spent on previous H-1. If no, then you are still eligible for 6 years on H-1.
Thanks a lot Saurabh for the quick response.
Yes…I traveled on this H1 for 13 months. So I expects that it can be used for 4 yrs and 11 months more.
I have the original I797 approval notice, W2 and all the pay stubs.
What else do I need?
Nothing else from your term on H-1. You would still require the documents from new employer (same list as any new H-1 petition filing) including wage reports, contact information, client/project information etc.
Hi Saurabh,
THe VISA team of my office is telling me that I have been more than 1 year outside US and also my VISA expired one year back. So this case is very complicated and the chances of getting approval is very less. They are telling me that even they approve, USCIS will count it in the FY 12 cap and stamping will start from Oct 1, 2011.As the requirement is urgent and they need me at onsite by end of August 2011.
Is my H1 case very complicated?
What is the probability of getting petition approval/rejection?
Thanks,
Sam
I don’t see it as too complicated. As long as you maintained status during your last visit, and your employer has all the genuine documents for the job, it should be fine.
If the old petition is submitted, you will be considered to have been already counted in the quota. So you don’t have to wait until 1st Oct to start working on H-1. If you don’t submit the old petition, you will be considered to have NOT been counted in the cap, and will have to wait for 1st Oct to start working.
I work for company A on H1B
I have an H1 transfer in progress for comapny B
Company C also wants to file H1 transfer for me and i want to join company C
Can two H1 Transfer process go on at same time ?
Yes, they can. You can then work for any of the employers (A, B or C) provided you have an approved petition for that employer.
I am working for a company AAA on H1 Visa.
I got another job from offer from company BBB and then filed for my H1 Transfer
that transfer has been approved but i have not yet resigned from my current company AAA
Meanwhile i got an offer from company CCC and i want to join them and do not want to join BBB
Is it legally okay for me not to join company BBB even though my petition is approved ?
Do i need to tell company CCC that my petition for BBB is approved before that begin the paperwork for my transfer ?
Also do you foresee any issue with my case ?
Yes, it’s ok not to join BBB. You just need to ensure you are working for at least one employer (w/ whom you have an approved 797) all the time and getting paid according to the LCA. So at this point, you can work for AAA or BBB.
You can skip to CCC w/o ever bringing BBB in picture. It’s not necessary to inform CCC about BBB’s approval, but I don’t see any reason of hiding as well. I don’t foresee any issues as long as you have been maintaining legal status by working for AAA until petition for CCC is filed.
Hi Saurabh,
I am holding a stamped H1b visa valid till Sep’2013. Currently i am working with Employer A in India. I have never traveled to USA. I wanted to ask you what if join a new Employer B who is ready to transfer my H1b visa in India and then post me to USA. Is it possible to transfer the H1b visa in India itself? If yes, then how and what documents are required?
Employer B can file a H-1 petition for you, and submit the current petition as proof that you have already been counted in the quota i.e. file H-1 transfer.
Documents required:
– all documents required for a H-1 petition (same checklist you had for employer A)
– copy of petition from A as proof that you have been counted in the quota, and don’t need to wait until 1st Oct to start working on H-1.
Hi Saurabh,
Can you please provide me inputs/suggestions for my situation. I am resident in the US and I got my H1b approved on the first week of this month. I have not yet started working on any project as we are trying to look out for one. Since my payroll has not yet been run , can i transfer my H1b through another employer even before working for my first employer.
Thanks
Was your H-1 filed and approved in FY-12 quota (started on Apr 2011) or in FY-11 quota (ended in Jan/Feb 2011)?
If it was filed in FY-12 quota, then yes you can it transfered to another employer. If you have at least 1 H-1 w/ new I-94 attached at bottom, then you have to start working from 1st Oct on H-1. If not, then you will remain on your current visa status and will have to file COS to H-1 or get H-1 stamped from outside US to work on H-1.
If it was filed in FY-11 quota, then you are out of status now as your H-1 employment has started and you are not getting paid (assumption is that your H-1 was approved w/ COS). You may still apply for a transfer, but I doubt it’s success as you don’t have any salary slips and are out of status. Start getting paid immediately or you will hamper your status even more.
Hi Saurabh,
Thanks for your post…that was very valuable. I would want to describe my situation and seek your suggestion. I am currently in India working for employer ABC. I have been to the US in the past. The last time I went to US a few months back, I had applied for my H1 extension and got it approved. So now, I know from the USCIS status that my H1-X is approved till 2013. However, my current employer will hand over the approved petition doc only once I go for stamping. Having said this, here’s my query:
1. Can I switch job (say employer XYZ) being in India? What do I need to ask them to do in order for a ‘visa transfer’? Please note that I dont have the petition docs but only the petition number (starting with EAC…). Would I actually need the docs OR have the stamping done on my passport before switching job?
At times, company is able to successfully file for H-1 just on the basis of receipt number. When filing for H-1 transfer, USCIS wants to make 2 things certain:
– you have already been counted in the quota previously. This can be done either through a 797 or just the receipt number (USCIS can look at that receipt in their records to see who it belongs to)
– you have maintained legal status while you were in US. You will have submit latest salary slips from US
You can go for stamping either through current employer or new employer depending upon when your transfer gets approved, and whether your current employer wants to send you to US for another term on H-1 etc.
Thanks for the response Saurabh..that helps a lot! I would also want to know if in case I switch a job being in India and the H1 transfer has been initiated by the new employer, will the current employer be kept in loop by any chance? or will it have any authority to cancel my transfer etc?
Rashmi
You don’t need to inform the current employer about the transfer. You just a need a copy of approved petition from them. If not, some lawyers are able to file for transfer on the basis of receipt number as well.
An employer does have the authority to request USCIS to cancel the petition for various reasons (like termination etc). So it’s best not to inform them, until transfer is approved.
Hi Saurabh,
Can my new employer file a new LCA with my role as developer instead of functional tester for H1B transfer?
Please see my response to your earlier post.
Hi Saurabh,
Thanks for your quick response.Previously i have asked about changing my role in new LCA filed by new employer. You have replied that new employer needs to file a new LCA and mention the correct role.
Thats my question can my new employer file a new LCA with my role as developer instead of functional tester for H1B transfer?
Yes they can do that, but USCIS may question the change the role. At that point, you may have to show that you now have the skills required for developer and can do justice to that role.
Hello there,
Thank you for all helpful information on this blog! I am on first term of H1B which was approved in 2008 and valid until 1Sept 2011. My employer has not started with the extension procedure yet. I am planning for visiting India. Should I visit India from August 01,2011 to August 15,2011 and return back before H1B expires and extension is pending?
Or should I wait until extension is approved and then visit India and get the modified visa stamp?
I am finding hard time to decide the option. Please can you guide?
Thank you,
-Manu
If you travel prior to your extension, you will receive an I-94 based on your old petition and that would end early.
If you can avoid travel, its better to travel after receiving the approved petition, so that you can get an extended I-94 date on return. PP is an option that could help you to speed up the process.