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H1B Transfer Process – Requirements, Documents, Timelines, Cost, FAQs

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.

Change of Employer option on I-129 form for H1B Transfer
Change of Employer option on I-129 form for H1B Transfer

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 :

  1. H1B Transfer Applicant outside of the US and never visited America.
  2. H1B Transfer after entering the US, but in a short time.
  3. H1B Transfer after working in the US and the applicant is in the US
  4. H1B Transfer after working in the US, and the applicant outside of the US
  5. 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:
    • 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 ComponentFee in USDAdditional 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
$1,500

 $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$500Needed as there is a change of employers
Fee-based on Public Law 114-113$4000Applicable, 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 FeeVaries 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

When can you start working for New Employer with H1B Transfer?

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.

Do you need permission from your current Employer for H1B 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.

Do I need to inform my current employer of my H1B transfer process?

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.

Can I do H1B Transfer from Cap Exempt Employer to Cap-Subject Employer?

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.

Any limits on the number of H1B Transfer Petitions that can be applied?

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.

Any limit on the number of times to apply for an H1B transfer in a Year or Month?

No, there are no such limits, you can apply for an H1B transfer as many times as you want in a month or year.

The H1B Visa stamp on my passport is expiring, can I do H1B Transfer?

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.

   

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2,390 Comments

  1. Sir, please suggest on my situation,
    I was working in company A having my H1B, I applied for H1 transfer with company B, when I got the receipt notice that they have receipt my transfer application, I started working with company B, I got a RFE for this H1B transfer and Company B has been replying to it. In the meantime I got a good fulltime offer with Company C, Can I apply for new H1B transfer with company C, I currently have 1 paystub with company B but no H1b petition approval.

    Reply
    • Yes, C can initiate H-1 transfer. They can submit approved petition from A, and transfer receipt notice from B along w/ their filing documents. As for payslips, you need to submit at least 3 months payslips (as you are already in US). They can be combination of those from A and B.

      Reply
      • Thanks for your reply Saurabh, I can arrange for receipt notice copy and salary slip, but I dont think they will give me filing documents. Please suggest if it will work with approved petition of A, 2 payslips of A and receipt notice snd 1 payslip of B for filing for C. Company A has not yet revoked my H1

        Reply
  2. Dear Sir/Madam,

    Please help out regarding this. It would be greatly appreciated.

    I worked in USA from 1998 to 2001 mid on various h1b’s.
    My final H1b was issued in 2001 to 2003 but that employer couldnt market me due to recession, so I returned back to india

    Now I have a B1 visa issued in europe thru a company. There is a company who wants to take me to US on b1 and apply for transfer based upon the OLD PETITION (H1b) ie which was expired in 2003 . I heard that would be cap exempt . So filing can be done. Can the transfer be possible. ?

    Reply
  3. Hi,

    I’m presently in the US on H4 visa. I have an approved H1B from a company which applied for H1B while I was in India and it is valid from December 2010 to June 2012. I have never gone for stamping of H1b nor have I worked on H1B earlier. I have a job offer from a company in the US presently. Now that I’m in the US, can I use my previous approved H1B to file a cap exempt petition? It’s pretty urgent. Could you please help?

    Reply
    • Yes that can be done. I assume you entered US on H-4 visa, and so no payslips will be required for this. The employer can file cap-exempt petition along w/ COS for you. Once approved, your status will be H-1 from the COS approval date and you need to start working and getting paid on H-1 from that date.

      Reply
      • Many thanks, Saurabh. One last question. This company tried to apply for a fresh fy 2012 quota subject H1B initially on November 20, 2011 . Their legal department had missed out on sending one of the checks to USCIS and hence my H1B was rejected. Now, they are willing to file a cap exempt H1b since the quota is over. Do you think this will work or will it be rejected because the earlier one was rejected because of missing check?

        Reply
        • I read few posts on this blog, where people were able to file cap-exempt petitions like this. In one case that I remember, employer filed in early Nov, which got returned b/c of missing checks. The employer then filed the petition again after cap got over and was able to make through the quota.

          Reply
  4. I am working in India with X company and got H1B Stamped but i didnt traveled to US on H1B. Now i got offer from Y Company in India and they have one opening in US. Is there a way to get H1B transfer? If yes then what is the process and how much time it would take. Can my current company X reject or impact the processing with company Y.

    Thanks in advance for the help.

    Reply
    • Company Y can file cap-exempt H-1 petition for you. Once that is approved, you can go for H-1 stamping (if the current visa stamp has expired) and then travel to US to work for Y. Your current employer cannot derail Y’s petition. They can get your petition and visa stamp canceled, but Y can still go ahead and file cap-exempt petition and you can then go for H-1 stamping.

      Reply
      • Thanks for the response.

        I got my H1b Nov, 2011 and its valid for next 3 years. I havnt travel on H1b. Now if Y compnay file cap exempt petition and get approval do i need to go for stamping again as i have one stamp for compnay X valid for next 3 years.

        Reply
        • You need to go for H-1 stamping only if H-1 is not valid or has expired. If the old employer gets your H-1 visa stamp canceled (as part of their exit process), then you will have to go for H-1 stamping.

          Reply
          • If my current employer cancel the pettition and visa stamping then does it cost to company X. and if got transfer visa to employer Y then the stamping having X emplyer name could create problem? or not?

          • I don’t think it would cost them anything, but I am not sure.

            X cannot create any immigration hassles for you. However, if you have a contract w/ them in India, then you need to look into the details of that contract to see if they can come after you.

  5. Hi,

    I am working for Employer A on a H1 Visa and it is valid till Jun 06 2013. I got a job with Employer B and They have applied for my H1 B transfer. Employer B says that the petition has been filed and received by USCIS, and they say attorney will issue a portability package following Friday and I can report to work on Monday. Can I resign my existing Employer A without getting my Visa information. and what is this H1 portability?? What is the possibilities if my transfer gets denied after i have resigned my existing employer A??

    Reply
    • Your employer is right. One can start working for the new employer on the basis of transfer receipt (this is called portability). However, in case your transfer is denied, then you need to go back and work for the old employer or immediately file for another transfer and work for that employer.

      Reply
      • Thank you very much!! So there is risk involved in resigning my existing job without the actual successful H1 transfer. I will be in trouble if my existing employer A cancels my petition and the new employer petition gets denied. So, Do you recommend me to wait till the successful petition transfer and then resign my existing employer A.

        Reply
        • You should wait if your new employer is a small to medium company, whose petition may or may not get approved. If the new employer is a big renowned employer, then you can have more confidence in resigning from old employer now and joining the new employer.

          Reply
          • This is the respose I got from my new employer “We filed a portability petition on your behalf and according to government regulations, as long as the portability petition reached USCIS, you are free to join us. We now have a receipt notice indicating that USCIS has indeed received your petition. If they issue an RFE, we have an immigration team who is well experienced to handle the issue. Also, please note that H-1B holder have a special rule that allows them to continue to live and work in the US up to 240 days after the expiration of their status so long as the new petition was filed before the expiration of the status or before stopping work with current employer.”

            My new employer is a well renowned company. I have confidence in them but i am little hesitant to quit my existing employer without a successfull visa transfer. Please advice.

          • Your new employer sounds confident and you also mentioned that are renowned. So there should be less risk in joining them on the basis of receipt. Are they ready to wait? If yes, then you can request to join them after the petition is approved. They can upgrade it to PP for speedy processing.

  6. I was in compnay A and I resigned Nov 30 and joined company B(after an approved h1b tranfer) and I am here for the last 10 days.I have not got one pay cheque also till now. I may get an offer from company C and I want to make the move since my husband is there and want to know is it considered unethical to do the transfer yet again. Will there be any problems in transfering to company C?

    Reply
    • Whether it is unethical or not is subjective. Some may say that’s it’s the cost of doing business, while others may say that the employer helped you in sponsoring H-1 etc and now you will be leaving him before he can earn revenue through your services.

      Payslips from B may be asked for when doing the transfer. Make sure you have them. As you have already spent 10 days w/ B, and may have spent another 10 days by the time petition reaches USCIS, you may be asked for B’s payslips for that period.

      Reply
  7. Hi,

    My h1b got approved in Oct’11 with X employer and I am still working on my old L1 status which is valid till Mar’13. Meanwhile, I got an direct employment offer from reputed employer. Is it possible for me to transfer my H1 with new employer without having paystub from X employer? If the transfer get denied what happened to my old H1B status? Is any legal challenges I will face if the transfer get denied? What is my current status still I am working on L1?

    Appreciate your help at earliest!!

    Thanks.

    Reply
    • Was your H-1 approved w/ COS or w/o COS i.e. did it come w/ an I-94 attached at the bottom of it? If it came w/ I-94, then your status is already H-1 and you should have been working on H-1. You will need H-1 payslips for any H-1 transfer.

      Reply
      • Thanks for your Saurabh!!
        My H-1 got approved with COS. Suppose, I transfer my H1 with new employer by attaching L1 pay stub, then in that case what will happen to my old H1 if the transfer get denied. Is their any way I can do transfer without H1 pay stub? Is it possible I can change my status by Joining new employer based on new H1 transfer receipt without waiting for H1 transfer approval?

        I really appreciate your advice.
        Thanks,
        Punam

        Reply
        • As your current status is H-1. you need H-1 payslips for the transfer. You cannot transfer w/ L-1 payslips (you are not supposed to be working on L-1 anymore).

          Once the transfer is filed, you can start working for H-1 employer on the basis of receipt. In case transfer is denied, you will have to go back and work for old employer (if that employment is still valid) or file transfer to another employer.

          Reply
          • Hi Saurabh,

            Thanks for your update!!

            Based on your experience, please suggest is any workaround for this kind of situation to transfer H1B. Did you refer anybody to whom I can talk and seek advice.

            Regards,
            Tushar

          • It would be better to talk to an immigration lawyer. You can ask your employer for wages. If not, then you can complain to DOL about them using WH4 form. I think based on that complaint you can apply for H-1 transfer (but you will have to check w/ an immigration lawyer about this).

  8. Hi,
    I got H1B from company A and been to US from April 2011 to June 2011. I got back to India as my project got over. So from July 2011 to till date I’m in India. I got an offer from company B and they began the H1B transfer process. But my current employer (A) is asking me to surrender the petition documents.
    My questions are,
    1. Will it affect the transfer process?
    2. Will they(A) cancel my current visa or permit?

    Please let me know.

    Thanks in advance.

    Regards,
    Murali

    Reply
    • 1. It will not. Remember to keep a copy of all the documents for future reference
      2. They can request USCIS to cancel the petition. However, that should not impact B’s processing. If A asks you to submit your passport (as part of their exit policy) and send your passport to consulate to cancel visa stamp, then you will have to go for H-1 stamping again.

      Reply
  9. Hi Saurabh,
    I have couple of queries – My husband is currently in the US holding a valid H1 (company A) and I am still in India however I too have H4 stamped but cannot join him for at least a couple months. My husband works for company A and has an offer from B. My questions are:

    1. Can he ask company B to do the H1 transfer under premium processing and that he’ll join B only after the approval of the petition? What are the chances that B will agree to that? I am concerned because in case he quits A before transfer approval and later if it gets rejected (looking at the way visas are getting denied these days), we might be in a soup…

    2. Is it advisable for him to switch employer (H1 transfer) while I am still in India? Will I be allowed to travel with H4 (that is under his employer A) while his H1 transfer for B is in process or approved?

    3. During my H4 filing, I had only shown that I was working till 4 months before the date of H4 stamping. However, I was in fact working for my new employer in India (job switch). My concern is – If I get an H1 sponsor in the US, can I mention about this job experience?

    Appreciate your help! Thanks.

    Reply
    • 1. Legally that is possible. Chances of B’s agreeing to it depends upon how soon B wants to fill in the position. If B wants him to join ASAP but your husband still wants to join after the petition has been approved, then B can file the petition w/ PP.
      2. Yes, he can do that. You can travel to US on existing H-4 visa stamp and his new 797 approval copy.
      3. I think it should be ok. In future, be truthful and consistent w/ your responses on all these forms.

      Reply
  10. Hey saurab,

    I went for H1B Visa stamping on oct 30th, and received 221 g blue slip whcih asked me to submit more documents like my w2 , 129 petition , LCA and etc. i did submit all on Nov 2 and now 6th Dec i received an email from consulate asking my dates of unemployment.Here is my scenario.
    I worked for company A until feb 21st 2009 which was a saturday and company B filed my tranfer of H1B on 23rd FEB which was a monday.
    On 26th Feb i revceived a layoff letter but earlier on 19th Feb i already had a ob offer letter from company B.
    But since employer B is a big firm i had to go thru lot of background checks and medical tests since its an hospital setting. My first day of employment with employer B was March 23rd, 2009. now my question is
    1. Am i considered unemployed between 21st feb (last day of employement ) to 23rd march (first day of employment)

    2 am I considered unemployed from 26th feb ( my layoff date) till 23rd march.

    3. Or am i not considered unemployed since according to H-1B portability rules under §105 of AC21 (INA § 214(n)) you can start to work immediately once H1b transfer is filled and then its emplaoyees call when they plan to report to work. and the gap between the two employment is only one day 22nd feb which is a sunday.

    4. Am i considered unemployed from 21feb 21st feb (last day of employement ) to march 4th (Receipt date of 129 petition by employer B)

    5. Am i considered unemployed from 26th feb ( my layoff date) to march 4th (Receipt date of 129 petition by employer B)

    please help in responding .

    Reply
    • If you didn’t get paid by either A or B b/w Feb 26 and Mar 23, then you will be considered unemployed during that period. A person on H-1 always need to be employed and should be getting paid. It seems you had all that covered except b/w Feb 26 and Mar 23.

      Reply
  11. I have couple of questions .

    There are two parts to the first question:
    1. Can you travel out of US while being in F1 and EAD through your husbands H1 is being processed?
    What if the EAD is approved, then you travel to India, and you have a baby in India. What status does baby need to enter back into US?

    My second question:
    2. If you are in US on an expired F2 and your husband has OPT but F1 stamped duration is expired, can you travel out of the country? If so, to renter what stays do you need to apply for?

    Second part of Q2:
    If you have to travel to travel to home country when F2 ( along with sponsoring F1 is expired but F1 holder is on opt working in US) is expired, can you apply for travelling visa to come back for a while and stay with husband?

    Third Part of Q3:
    If F2 is expired and you have to travel out of the country for medical emergency, and your husbands H1 is approved in 2011 quota, how soon can you go for H4 stamping(assuming that h1 is not active or valid only after October 2011)?

    Reply
  12. Hi,

    I recently applied for H1-B with company A.
    It’s filed month ago and I have got the receipt
    number regarding this case.
    But I just got an offer from company B, and since 2011 quote has been used up I could not file a new one with them.
    I guess the common solution would be waiting for this H1-B approved, and then do H1-B with company B.
    But, I do want this process to be finished ASAP.
    My question is that can Company B take over my previous case with company A?
    It’s more like to withdraw the case with A and ask B to do it. Actually it all comes to
    whether I have already hold a H1-B quote or not.
    Please help me, I really appreciate any reply from you!

    Jen

    Reply
    • That is not possible. A’s petition need to be approved for B to file cap-exempt petition. If you want to speed up the process, then upgrade A’s petition to PP. Once it is approved, ask B to immediately file for cap-exempt petition. And then start working for B on the basis of their receipt notice.

      Reply
  13. Hi,
    My H1b is with company A. I have got visa stamped and haven’t entered USA yet.
    I got a job through company B.
    Now, if company B has say they will file a visa transfer for me.
    Now:
    1. Can i get into USA? It could be before company B visa transfer petition is approved.
    2. If yes, then in the US port of entry, what should i reply to immigration officer, if he/she asked who is my employer?
    3. Will there be any issue on I-94 card?
    4. Is these going to create any future immigration problem regarding GC processing.

    Please advise.

    Br,
    Rishad Rahman

    Reply
    • 1. You can enter US on H-1 only after letting the concerned employer know, and for which you have an approved 797 (H-1 petition). So if you plan to work for A, let A know and travel to US on H-1. If you plan to work for B, let B know and get H-1 approved and travel to US on their 797.
      2. I assume you are talking about the case when you enter through A, and file transfer to B. In this case, you will still have to keep A in loop. At PoE your employer would still be A. Once you have entered, B can immediately file for H-1 transfer. You can then either continue working for A, or start working for B on the basis of receipt notice.
      3. As long as you are entering US keeping your concerned 797 employer in loop and have all the right documentation, you should be fine.
      4. Same as 3.

      Remember do not use A’s 797 to enter unless they are in the loop.

      Reply
  14. Hi,

    I have below understanding of different combinations in H1B transfer. Please confirm [or] correct if my understanding is incorrect.

    [1] Can H1B transfer be done with only the approved petition?

    Yes. Receipt number [or] copy of approval notice would be suffice.

    [2] After visa interview can H1B transfer be done with new company?

    Obviously yes. No need to go for visa interview again. We can use new petition and old visa stamp to work in US.

    [3] If consultancy cancels my petition before visa interview can I still do H1B transfer via another company?

    Yes. Receipt number [or] copy of approval notice would be suffice.

    [4] If consultancy cancels visa after visa interview can I still do H1B transfer with another company?

    Yes. But you need to go to visa interview another time for new company for new stamping with new CAP exempt petition.

    [5] If consultancy cancels both petition and visa after visa interview can I still do H1B transfer with another company?

    Yes. But you need to go to visa interview another time for new company for new stamping with new CAP exempt petition.

    Reply
  15. A person XXX started employment with company A on H1B visa on October 1, 2007.
    The visa was valid till September 2, 2010. In July 2009, Company A filed the labor certification for him to sponsor his Green Card. The labor was approved in just 9 months and then Company A filed the I-140 in around May 2010. Meanwhile, the company A also filed for his H1B renewal. In August 2010, person XXX resigned his job from company A and moved our of the United States to join another company in Canada after getting permanent residency in Canada.

    Now after being in Canada for more then a year, he finds another good opportunity in United States with company B and the company B is ready to sponsor the H1B but doesn’t want to wait for next year quota and to wait for person XXX till October 2012 to join the job.

    As person XXX left the company A and the United States in August 2010, even before the expiry of first stamping, and when almost 3 years are still available from the first H1B filing, can the company B:
    – file his H1B now without facing any quota restrictions and use the remaining 3
    years on the first H1B filing
    Can the person XXX join the company immediately after getting the H1B approved?

    I look forward to hearing further from you soon.

    Reply
    • B can file cap-exempt petition for XXX based on old H-1 petition. This can be filed anytime. In case the H-1 visa stamp has expired, XXX would need to go for H-1 stamping and can then enter US to work for B. H-1 would be approved for 6 years – time already spent in US on H-1.

      Reply
      • Thanks for your reply. It is quite helpful. I sent this note to the HR of company B and got following response from him:
        ——————————————————————
        I requested and received a reply from our Visa point of contact in response to your bullet items below. Yes, under most circumstances we would able to transfer H1b visas with time remaining held by those who are working in the US under sponsorship of their current employers. In your email you note that “I moved to Canada last year on August 14.“ thus indicating you are no longer working in the US under current sponsorship. In this situation since you are no longer in the US and are not currently working in the US under US company sponsorship, we would need to request a new H1b, which would not allow you to join us (or any other US employer) until Oct 1, 2012. As I shared with you before, you are welcome to apply to the this position but given the critical nature of the role we need the person selected to start as soon as possible.
        —————————————————

        Please help me in handling this situation. Also, is there is any USCIS link, which explains the process better.

        I look forward to hearing further soon.

        Reply
        • IMO, you can file for cap-exempt petition based on your previous filing, but seems like the lawyer wants to go for a new filing. I don’t have any USCIS link that I can provide to support my claim. Check w/ another lawyer to see what their opinion is.

          Reply
  16. I recently got my H1 approved for a marketing position in company A. Now I got a job offer in company B and want to start working there in Jan 2012.

    My issue is that the resume I submitted while company A applied for the visa is heavily tweaked to the position in company A. The resume I submitted for company B is tweaked to position in company B. Both resumes are quite different. While processing do they check this? Is it better I submit the resume which I submitted while applying from Company A? Also I would have 1-2 paystubs by Dec end…will that suffice?

    Reply
    • You should be fine on the payslip front (assuming you just entered US to work on H-1 and have worked for only those 1-2 pay period).

      At times resumes are tailored to match job requirements, but one needs to be careful if they are completely different. I am not sure what kind of impact (big or small) it will have on your petition.

      Reply
  17. Dear Saurabh,

    I have an H1 petition that was approved in 2007 and expired in 2010. It was not stamped on my passport as I didn’t respond to a section 221g query that was raised at the consulate. So although I have been counted once in the H1B Cap in the last 6 years, I have never been in the US and so never maintained H1 status at any point.

    I have heard 2 contradicting views on cap exemption. One view suggests that cap exemption can be claimed only if I have maintained H1 status at least once and since I never used the H1, I cannot. Another view is that the pre-requisite to maintain legal status doesn’t apply if never been to US on H1 and so I can be cap-exempt.

    So will I be still able to claim cap-exemption if another employer files a new petition now? If yes, will I be granted full period as no period was used out of the old petition?

    Reply
    • I have also heard both the views, and I am inclined more towards the 2nd view. A person can apply for H-1 transfer even while being outside of US. I expect same to be the case here.

      IMO, employer can file cap-exempt petition for you, and you will be granted for entire 6 year period as you have never been to US before.

      Reply
  18. I am working for company A and have got full time job offer from Company B. My H1B transfer is currently in progress from A to B. Due to certain reasons, I would like to continue working with company A. Question here is “Is it legal for me NOT to join Company B once H1B transfer is approved and continue with Company A itself with current H1”? Or else, does H1B need to be transfered from B to A?
    Please advise..

    -Shameer

    Reply
    • I assume you are currently working w/ A on H-1. Even after the transfer gets approved, you can continue working on A based on already approved petition for A. You don’t need to worry about B’s petition. In future, you can decide to work for B by using B’s approved petition.

      Reply
  19. Hi Saurabh,

    I got my visa transfer approved from Employer A to Employer B and my start date with employer B is End of January 2012. Now, I want 2 weeks of leave in Mid february for my marriage in India. Keeping in mind that I have valid stamping till aug 2012 with employer A, I have following questions:
    Q: I am planning to go for stamping when I will go for marriage. Can i go for stamping just after 2 weeks of joining the next employer keeping in mind I will not have paystubs of the new employer.
    Q: Are there any risk in going for stamping.

    Reply
    • Why do you want to go for stamping when your visa stamp is valid until Aug 2012? A person can enter US on visa stamp through A even while working for B, as long as that visa stamp is valid and not expired. However, your wife may have to go for H-4 stamping. She will have to carry your latest payslips (2-3 months, it’s ok if they are all from A) and other employment related documents (including 797 from A and B). When asked about your employer she can answer truthfully that you will start working for B once you return to US and had been working for A until you left US for your marriage.

      Reply
      • Saurabh,

        Thanks very much for your reply…..I had apprehensions since the name of the employer A has been clearly mentioned in the visa stamp. So I will have a petition of employer B but visa stamp of employer A that made me ask that question…

        Reply
  20. Last month October 2011,H1-B visa was stamped in the passport for me through employer A. Here my question is ,

    1. Is it Possible to cancel my H1-B visa by employer A.

    2.Till now i didn’t go to USA, Is possible transfer H1-B if i move to employer B.
    could you please tell transfer policy?

    Reply
    • 1. A can send your passport to consulate to get the visa canceled (at times companies have that clause in their exit policy). They can also send a request to USCIS to cancel your 797 petition.
      2. Yes, that can be done. Find another employer who files H-1 petition for you. They would submit the old petition copy as proof that you have already made through the quota. Once approved you can enter US and work for the other employer. If you already have unexpired stamped visa in your passport, you don’t need to go for stamping again at that point.

      Reply
  21. Please help me : I am planning to go for first h1 stamping(valid till oct 2012) after changing from h4-h1 and worked for 2 yrs in US . If i get query or reject during stamping can I apply for H1 transfer being in India . ?
    or can I initiate the transfer process now and go to India while the transfer process is in progress and go for stamping with previous employer if it gets query or reject then schedule another interview with new employer transfer approval petetition and go for H1 stamping again?

    Reply
    • Both options are available – filing for transfer while being in India, or filing for transfer before leaving for India. As you will be ultimately joining one employer on your return, you may make at least 1 employer unhappy in 2nd case (in first case you will file for transfer only if visa stamp is rejected).

      Premium services are available for transfer, so if you go w/ first option, you can get the new petition approved within 15 calendar days (assuming no RFE).

      Reply
  22. Hi Saurabh
    I got my H1B stamped through employer A(Consultancy) last October. I got it transferred(H1B transfer pettion approved but no stamped since I am in US) to employer B(Consultancy) three months back. I got terminated from service by employer B recently and I somehow managed to bag an offer from a US company(Employer C) for fulltime opportunity lately.
    However it looks like the whole process is going to take a month(Background verification, LCA and H1B transfer PP). I have all the legal documents required(Paystubs, Previous client letters, I94 etc). Since I have 20 more days to kill before they initiate the H1b transfer process. Is there a way to safely travel to India and spend some time with my family?
    Even though my present employer(B) terminated me, they have promised me to support in whichever way possible(rolling out next month’s paystub to keep me in status)

    Many thanks in advance.

    Reply
    • This is what you can do. Leave US for the personal visit. Carry all the payslips for the period you were in US as they will come in handy. Once your H-1 transfer to C is approved, you can travel back to US and work for C. You will not require any new stamping as long as your current visa stamp is valid.

      Remember to get paid as long as you are in US.

      Reply
  23. Question regarding 2012 CAP. My employer’s lawyers sent out a H1B petition on Monday 21st with premium processing, they say it got to the USCIS on the 22nd. How is the USCIS going to process the petitions received on the 22nd, say they got 5,000 petitions for 3,200 remaining spots, will they do a lottery? The petitions received on the 23rd will they just send it back unopened, or they open them and reject them on the CAP basis? And finally how long do you think they all take to do that, I am worried because I was already getting my moving arrangements in order and the tardiness of the lawyers was a surprise, they already had the LCA approved since the 16th!!!

    Reply
    • In the past years, USCIS has been published the lottery information in their press releases. However, this year they didn’t mention anything about the lottery and so I am assuming there would be none. There are already people whose petitions were received on 22nd and have received the receipt numbers. So it seems like that they received just enough petitions on 22nd. It is also possible that even if numbers went overboard on 22nd, they accepted those extra numbers to account for any possible rejections.

      Reply
  24. Hi

    I previously held an H1-B visa, the petition for which expired in Decemer 2006. I am currently on an L1-A visa in the US. If an H1-B is applied for me now, does it have to be a new petition or will this be counted as cap exempt?

    Regards
    Savita

    Reply
    • You might be eligible for cap-exempt petition. However, I am not sure if the previously held H-1 in last 6 years implies it should been filed in last 6 years or it should have been valid at any point in during last 6 years. You will have to check w/ an attorney.

      Also, if you file for cap-exempt H-1 then you will be eligible for only 6 years minus time spent in US on L-1A minus time spent previously in US on H-1.

      Reply
  25. Hi,
    If consulate refuse to stamp after H1B interview due to some reasons [or] if it has given H1B stamp can I still do a H1B transfer later with another company with previous H1B petition in both cases?

    Reply
    • If consulate refuses to issue the visa, they would send the petition back to USCIS for review. If USCIS revokes the petition, then it cannot be used for future H-1 transfers.

      Reply
  26. Hi Saurabh,

    I have below queries please help:

    [1] From form I-797B I see this statement – if worker doesnt enter US [or] any substitutions are made petitioner should notify office so that allocated non-immigrant visa numbers can be reused – What does this mean? Can petitioner cancel the petition anytime?

    [2] If assume I do H1B transfer with company A with copy of form I-797B and after that can the previous petitioner cancel my previous petition [or] previous petition becomes invalid?

    [3] Can previous petitioner by cancelling old petition[which is invalid as H1B transfer has been done] can come to know that H1B transfer has been done with another company?

    Reply
  27. Hi

    I was in US on H-1B with company A and moved to India in June 2011. I left company A in US itself. I joined company C in India. Meanwhile Comapny B filed for H-1B transfer and this is approved now while in India. Now company B is asking me to join in India with them before going for stamping and this is mandatory. I think its risky to left company C without getting stamping got completed. Do I need to join company B before going for stamping in this case or I can go for stamping saying i will join this company directly in US.

    Reply
    • Legally, it is not required to be working for B in India when going for H-1 stamping. If B has such a rule, then it’s their policy not USCIS’s.

      Reply
  28. So the question here is, my company was a subsidiary of another company, that bigger company is going to merge with my company. so there will be company name change too. This is going to happen January 1st. so should my new company apply for a new h1b or an amendment is enough. and when does need to be done. should be done before jan1st or after jan 1st.

    Reply
  29. I am very new to all this. This April, I got a H1B visa stamped in India from a company A. It is valid to April 2013. Now in June, I had to leave my company. I never went to US on this visa. I am still in India. While leaving the company, I was asked to submit my original I797B form. Now, I am getting an offer from an US company but they need I797B form. What should I do? I doubt my previous company will give me the form. Can I not issue the form from any other legal source.

    Reply
    • Hey Saurabh,

      I see you have not replied to my post. It is really very urgent for me to get some resolution. Kindly help me with this. Thanks to you in advance.

      I will repeat what I need help with:

      I am very new to all this. This April, I got a H1B visa stamped in India from a company A. It is valid to April 2013. Now in June, I had to leave my company. I never went to US on this visa. I am still in India. While leaving the company, I was asked to submit my original I797B form. Now, I am getting an offer from an US company but they need I797B form. What should I do? I doubt my previous company will give me the form. Can I not issue the form from any other legal source.
      Regards,
      Amit

      Reply
    • If you have a copy of the 797 form, you can submit that to the new employer. If you don’t have that either, then you can submit the receipt number of that 797 to the employer. One can gather the status by entering that receipt number on USCIS website.

      Reply
  30. I have a question on L1 to H1 transfer. The situation is -:
    1) I am working in US on l1B visa for company A
    2) I contacted a contracter who can sponser my h1b visa
    3) I took leave for the company A which I am working
    4) I joined the company which my H1 employer wanted to join company B
    5) After few days he applied for H1 visa with all papers as he had the signed contract for me.

    Now I want to know do I need to work for company B for H1 B to be approved.

    Reply
    • You mean you started working for B even before your H-1 was approved w/ COS? If yes, then that was incorrect. As long as your current visa status is L-1, you should work for L-1 employer and not H-1 employer. You can work for H-1 employer only when your status changes to H-1 (happens when one enters US on H-1 visa stamp or gets COS to H-1 approved).

      Reply
      • The H1 employer told since he has I797C receipt so I can work, however the important question is whether I need to work for H1 employer for getting the H1 now.

        Reply
        • What I mean is H1B application is in initial review state and decision is pending. My employer is saying that he will be asked for request for information and for that he will need recommendations from company where he is employing me.

          Reply
        • Your employer doesn’t know about H-1 rules. The most important thing right now is that you are working in US illegally by not working on L-1, but on H-1. One can work on 797C only in case of H-1 transfer (when the previous status is also H-1). IMO, you should talk to a good lawyer immediately about your case.

          One needs to continue working for L-1 employer until COS gets approved. Once COS is approved, only then one can work for H-1 employer. You don’t need to work for H-1 employer for H-1 to get approved; you need to continue working for L-1 employer.

          Reply
  31. Hi,

    My petition got approved and I have the receipt number. Can a company do cap exempt H1B visa transfer with the petition number or it needs the copy of I-797? Please clarify.

    Reply
  32. Hi Saurabh,

    I am on H4 in US and i have got a job offer with company A. They have filed my LCA on 14th Nov 2011 and LCA approval is awaited.

    Now looking at the quota situation, I am not sure if i will be able to make through the 65K cap.
    I have a question regarding LCA approval, does LCA takes 7 to 10 business days or calendar days?If the 7th day falls over the weekend then do they notify cmployer the same day or on the following monday?

    Now everything is dependent on LCA approval, employer is saying that as soon as they will get LCA they will file my H1b application.

    I am very much worried about this.

    Thanks in advance.

    Regards,
    Monika

    Reply
    • It’s business days. I am not sure if they will send out on the same day or the next day. At this point, it’s a 50-50 chance. The next count update from USCIS would provide more clarity.

      All the best!

      Reply
  33. Hi,

    I am working for Company A and have a valid H1b visa+petition till September 2012.
    I worked in US for Company A for 1.5 years and returned to India in May 2011.
    I have an offer from a consulting firm in US who is asking me to travel to US with the old petition+visa (from company A). They will start the H1b transfer process after I enter US.

    a) Is it safe and legal to travel with the old petition and start the H1b transfer immediatly after entering US?

    b) If (a) is not safe, is it safe to travel with approved LCA and receipt of H1b transfer from company B but visa from company ?

    Appreciate your help, Thanks in advance

    Reply
    • 1. Not safe. You should use a petition for travel only if you have kept that employer in loop. If your old employer doesn’t know about your travel plan, then do not use that petition for travel. The PoE officer may decide to call the old employer for confirmation and if he is not in loop, then that could be an issue.
      2. That might work out but I am not sure. You will have to check w/ a lawyer on this. Also confirm w/ him what date PoE officer would put on the I-94 (you will be entering on a 797C receipt notice and so there is not validity dates yet for the new petition).

      Reply
  34. I completed my Masters (non STEM) from US and was working for a year on OPT with employer X. After my OPT expired I got a job with employer A and employer A has filed my H1b (normal processing). I expect to get the H1b approved sometime next month. Meanwhile I got better offer from employer B this week. Employer B is doing my background check etc and will file LCA in last week of Nov. Maybe by the time the LCA gets approved the H1B quota might be full and employer B might not be able to file H1b. Lets say employer B is not able to file H1b in time and petition by employer A is approved. My ques is can employer B request for transfer of the petition filed by employer A.

    Reply
      • Thanks a lot for your reply Saurabh.
        It would be helpful if you can please answer the followup questions:
        1. I assume even though I do not join A, B will still be able to file cap-exempt petition. In short irrespective of my joining or not joining A, B would be able to file cap-exempt petition.
        2. I assume I do not have to leave US and get H1 stamped so that B can file cap-exempt petition.
        3. If the cap-exempt petition gets rejected, does the original petition also get cancelled.
        4. Does the job description for petition A and petition B have to be identical.
        Thanks!

        Reply
        • 1. That is true. However, once A’s petition gets approved w/ COS, your status would be H-1 and you need to work on H-1. You will have to either work for A on H-1 or for B (if they immediately file H-1 petition for you).
          2. Yes, if A’s petition is approved w/ COS then your status would be H-1 and no stamping is required until you travel out of US next.
          3. No, it doesn’t. You can still go back and work for A if B’s petition gets rejected.
          4. Not identical but similar. How much of drastic difference do you think there will be?

          Reply
          • Thanks Saurabh! Appreciate you taking time to answer my questions.
            To clarify your comment – there would not be much difference in job responsibilities say maybe 20% different. But the job title would be different.

          • One last question.
            In this case since I might not be joining A or might join A till B files transfer petition, what documents do I need to get from A to give to B so that B can initiate transfer. Is the copy of approval notice sufficient.
            Thanks!

          • You need to have
            – copy of approval notice (797) from A
            – payslips for any period spent w/ A in US on H-1
            – W-2 for any period spent w/ A in US on H-1

  35. Hi,
    A desi consultant company ‘A’ did my H1b last month and finding jobs for me. Meanwhile I got offer from direct software company ‘B’. My question is how will my H1b transfer happen? I don’t have any paystubs from A as I have not started my job. Can A trap me? How is this process?
    Don’t know if anyone has faced similar situation
    Please guide.

    Reply
    • I assume you are outside of US right now. If yes, then you do not need payslips for H-1 transfer. Payslips are required only when you are or have been in US on H-1.

      Reply
  36. Nice informative article, Thanks Saurabh.

    How long can one stay outside US so that he is still eligible for H1 cap-exempt ?
    I had an H1 that expired in May-2011. I am in India since Jan-2010 (almost 20 months ). So if an employer decides to sponsor me now, would he be able to do so with cap-exemption ? I have used little more than 3 years of the time on visa.
    The visa stamp was canceled by my employer, and the petition surrendered (I do have a copy though) when i quit.

    Reply
    • I think one remains cap-exempt if s/he previously held H-1 classification in last 6 years. However, depending upon one’s particular case it may be better to go for non-cap exempt. This comes in handy when quota is still open or when there is no rush to travel to US. Filing it as cap-non-exempt allows you to start the 6 year H-1 term again (provided one has stayed outside US for more than 1 year).

      If you really need to travel before 1st Oct 2012 (this year’s quota is almost done) then have the employer file it as cap-exempt; else file it a cap-non-exempt and get another 6 year term on H-1.

      Reply
  37. Hi Saurabh,

    I work for xyz(Big IT Company), my H1B was filed for A client and it is approved vald till july,2012.
    Now i am working for b client in same company and would be travelling to US using same H1B work permit. I have to attend visa stamping interview in coming week.
    Can you please let me know, after getting my Work permit stamped,
    1. can i get my work location and client name changed on petition? Do i need to go for stamping again after getting it changed?

    I129 and LCA forms have client name and location, both need to be changed?

    Regards,
    Anoop

    Please advise.

    Reply
    • Going by people’s recent visa interviews, I would recommend file new LCA and I-129 if the client and/or location has changed. The new petition would be cap-exempt. However, your employer/attorney may have a different view as there is not much clarity on this at the moment.

      Reply
      • hey saurabh, thankyou

        I am thinking to go for stamping with all my LCA and documents as i have them and once stamped, i can get a new LCA for my new work location and client. I hope it is correct ….isn`t it?

        Will there be any problem if get a new LCA after stmaping?

        Regards,
        Anoop

        Reply
        • You will be carrying documents for a client located at a different location, right? The VO might ask why your LCA/I-129 is for one location, while the client is located in a different location.

          If VO ignores, then one can file for new LCA/I-129 after the stamping (but preferably before traveling to US).

          Reply
  38. Hi Saurabh,

    I wonder why most of the companies are not ready to sponsor H1 but ready to transfer if you have H1.
    I understand that transfer is nothing but a new petition with same cost to apply except it doesnt count under the cap.
    Please clarify.

    Reply
    • Interesting question. I can think of following reasons:
      1. It is cap-exempt and so can be filed anytime during the year.
      2. It would show that the candidate is eligible for H-1 (USCIS would have verified education credentials and past experiences)
      3. Anything else anyone else want to add …

      Personally I think if a candidate is credible and has good enough education and experience, and quota is still open then new petition shouldn’t be a no brainer.

      Reply
      • Thank you for the quick reply. I hope big companies should consider this and start sponsoring aggressively.

        Two more questions,
        1. Before coming to US If I transfer the H1B to another company B without informing the main sponsoring company A, how long the company A can keep the petition from withdrawing.
        Any negative impact for them if they dont bring the candidate within some specific time. Any time limit for them? I just dont want to create problems for the company A who sponsored me.

        2. I am a fulltime employee of company A, I get the sponsorship from a consultant company B and H1b is approved saying it as an internal project. Company A has many openings in US for those who have approved H1Bs.
        I want to join company A in US as a permanent employee
        a) Is there anyway to go for the stamping with the client Letter from company A.
        b) Should I introduce my company A to the consultant B and ask him to take it as a client. Here unnecessarily I have involve this consultant in the middle and I wont be the permanent employee of company A.
        So many confusions. Any idea will be helpful.

        Thanks,
        Kris

        Reply
        • 1. They can either never withdraw the petition and let it expire, or withdraw it as soon as next day. It is up to them.
          2a. In this case, you need to have an approved petition from A. Once you have that, you can go for H-1 stamping carrying documents related to A.
          b. If you think this arrangement will not work out, another option is to approach A and file a H-1 petition (cap exempt as you already have an approved petition).

          Reply
  39. Hello Saurabh,

    I am in H1B and transferring the H1B from Company A to B.
    My LCA is approved and petition is in progress.

    I have to joining company B on 21-OCT-2011 which is Monday.
    Hence, last day in Company A will be Friday, 18-NOV-2011.

    Will the weekend days considered as without status?
    Will it create any problem in future?

    Thanks and REgards,
    San

    Reply
    • Sorry date correction
      ==================

      Hello Saurabh,

      I am in H1B and transferring the H1B from Company A to B.
      My LCA is approved and petition is in progress.

      I have to joining company B on 21-Nov-2011 which is Monday.
      Hence, last day in Company A will be Friday, 18-NOV-2011.

      Will the weekend days considered as without status?
      Will it create any problem in future?

      Thanks and REgards,
      San

      Reply
  40. Hi Saurabh,

    My company will apply for my US visa soon.I have 2 options – either L1 or H1B.
    Which one do I opt for ?
    I heard L1 has a higher rejection ratio.Is that right?

    Thanks

    Reply
    • If your job is L-1 qualified, then L-1 is an option; else go w/ H-1. Lot of companies have misused L-1 visa over the years, and USCIS has become very strict w/ L-1 filings. So unless your job involves working on employer specific tools/applications etc, you should stay way from L-1.

      One’s dependents cannot work on H-1, but can on L-1. Also, one cannot change employer on L-1, but can on H-1.

      Reply
      • Hi Saurabh,

        My employer is filling H1B premium in ongoing quota….I have submitted docs today(17 Nov 2011)….Employer will be sending my docs for LCA on 18 Nov…..Will I be able to reach the ongoing quota….pls share your estimation??

        Reply
        • There is a 50-50 chance. Next week is a short week (Thanksgiving) so I expect lesser petitions to be filed. But who knows. When the quota is about to reached, everyone rushes in to make through the final cut.

          Reply
  41. Hi Saurabh,

    I recently got my L1 to H1 transfer done to company A ( Relatively small desi consulting company having 60 employees) and started working for them since Oct’11. They have agreed to do my Green Card processing after 6 months. Meanwhile, I got a full time job offer from a reputed american company. Even they offered to process GC after 6 months. My question here is like this: Is it safe to take this full time job offer because I heard from friends there are chances of labor certification rejections while going through reputed american companies. Bcz while they advertise there can be qualified americans applying for that job and my necessity for that role may not get justified. Meanwhile Desi companies know the safe routes and can get the approval without much hassles. I’m in a dilemma now, request your personal opinion and advice on this.

    Thanks,
    Sree.

    Reply
    • As per law, any GC job needs to be advertised in leading newspaper, followed by quiet period where the hiring manager would go through all the submitted resumes. DOL expects the manager to honestly review the resume. It is up to the manager/company on how honest they want to be, but if foul play is suspected then that petition is denied (and it may also impact all future filings from that company). You can go through publicly available databases to see how many PERMs have been filed by big employers and how many amongst them got approved.

      Reply
  42. Hi Saurabh,
    Thanks for providing this helpful information on H1B transfer. I am currently on H1B valid till 2014. I will be quitting my current job and take 6 months break in India. I was searching on net if I can use my visa to get a job again in US, after 6 months. Like you mentioned, I suppose I’ll have to look for a job and the new company will file H1B transfer, with my paystubs of the time I was in US. The questions I have are:
    1. Can I travel to US after I get the receipt number, or I have to wait till approval.
    2. Do I need a new stamping or my current stamping (valid till 2014) with new approval will work.
    3. What are the chances of getting H1B transfer approved being outside US, compared to being with-in US.

    Thanks a lot for the article, its really helpful.
    Regards,
    Jaydeep

    Reply
    • 1. Preferably wait until approval.
      2. You don’t need to go for stamping as long as that visa stamp is valid.
      3. Both have same chances. It primarily depends upon the new employer, proposed job, your profile and whether you maintained legal status in US or not.

      Reply
  43. Hi Saurabh,

    Company A holds my visa and filed extension on Aug 2011. After got approval, I went to India for vacation, visa stamped with family and came back to US alone for Company A. I and my family have my visa stamped valid till April 2014. Now getting a job offer from Company B. I want to travel to India after got H1B transfer approval for Company B and come back with my familiy. In this case, Do I need to go for stamping again along with my family ? or Can I come back to US in the same existing valid visa stamped?

    Thanks for your help.

    Reply
    • N, you don’t need to go for another round of stamping until your current visa stamps are valid. You can continue to travel in and out of the country using those stamps (and latest 797 from current employer) even after changing employers.

      Reply
  44. Hi,
    I have a question on H1B transfer (for the same employer and client, but to a different location), when H1B extension is in process. I was working in California and my current I-94 expires in Dec 2011. My employer has filed H1B extension for California. But due to client requirements, I had to move to Colorado. Can my employer now file for H1B transfer to Colorado, while my H1B extension for California is with USCIS? I haven’t revieved the receipt number for the filed extension yet. Please let me know what could be done.
    Thanks.

    Reply
    • If the work location has changed then a new LCA needs to be filed. I am not sure if the employer can just amend the pending petition to use the new LCA or if it needs to be withdrawn and a new petition needs to be filed. Check w/ an attorney on that.

      Reply
  45. Hi Saurabh,

    My case is getting complicated and really need your guidence, the original petitioner is company A and my file was approved on Jun 2011, it changed name to company B on Aug 2011, then it was merged by company C, just heard the company B will be written off at the end of this year, how can I go with the H1B transfer, so far I didn’t get the offer letter from company C and not sure if I can get it, don’t know how to move forward for my case and how I get the H1B visa stamp.

    Thanks/David

    Reply
    • If you are planning to work for C, then there is no H-1 transfer involved. A and B are same legal entity, and they now merged w/ C. I think you can use the existing petition from A (along w/ documentation that it renamed to B and then merged w/ C). H-1 transfer comes into picture when a different company needs to file petition for you. Are you planning to work for a completely different company (say D)?

      Reply
      • Hi Saurabh,

        Do you mean I can apply visa stamp with documentation that it renamed to B and then merged w/ C? I have 797 and 129 now, do I also need to obtain a new Offer Letter from C? Compant A provided me an offer letter when applying H1B petition, not sure if I can use that one for visa stamp application.

        Regarding D mentioned, I am thinking of a transfer to my friend’s company, but how about the procedure and how long it will take normally and how much I need to pay to government fot the H1B transfer? And if I can start to work for D if the transfer application is filed in future, myabe then in this case, B1 visa is needed temporarily.

        Thanks a lot!
        David

        Reply
        • Yes, you can try to do that. Now that I think about it again, it would be better to carry a letter from C stating they still want to hire you as an employee. During M&A, a company can lay-off employees and can also decide to go back on employment offers already made out. Just to be sure that the consulate officer doesn’t question you on this, you should carry a letter from C stating their intent to still hire you.

          With regard to D, D needs to file H-1 petition for you (just like A did). In addition to all the documents, they would also submit 797 petition from A, which would show that you have already been counted in the cap and your petition is cap-exempt (H-1 transfer). Once approved, you can go for visa stamping (if you don’t already have unexpired H-1 visa stamped in your passport). Once stamped, you can travel on H-1 visa to US and work here for D. D would have to pay the filing fees, and later you will have to pay for the H-1 interview fees.

          Reply
          • Hi Saurabh,

            Really appreciate your help.

            In addition, just want to discuss the possibility for my visa stamp, a firend has the samiliar case, recently she moved to US with H1B using B’s 797 and B’s offer letter, so I am thinking about if I can bring A’s 797, the document of A renamed B, and B’s offer letter for the visa stamp, please help to identify the feasibility.

            Thanks a lot!
            David

          • You can try that, but you should keep B in the loop. This way if the consulate issues any query, then your employer will know what to reply and it will not come as a surprise. It is also possible that when you inform B about this, they can ask you to not go for interview until you receive official offer from C.

  46. Hi,

    Thumbs Saurabh for g8 help you providing here.
    I’ve a query:
    My company is processing for H1 for me.
    Now, 1 of my colleague is denied for H1, giving 221g.
    The reason stated was: Ur company is service based not product based, which is true.
    But, our company say us to tell (while H1 stamping Intv.)that you will be working in our onsite office only on some products, not @ any client place. ..
    So, i’m kinda a fix now, how should i deal with this.
    Should i say the truth that ill be working on client location and yes that we are service based company or should i tell what my company tells me to do as stated above.>?

    Now, how my colleague should proceed??
    And few of my colleagues got H1 also, is this a matter of LUCK??/
    pls guide on above things….

    Thanks

    Reply
    • If your company is a service based company, then VO expects you to submit client/project information where you will be working on. Do you know the client name/location where you will be working on? If yes, then you should definitely answer on those terms. It seems your employer wants you all (employees) to answer as if you will be working on internal projects but in reality you will be working for clients. Even when saying that you will be working on products, the VO can question about product details, market response etc.

      A lot depends upon the person interviewing you. Not all VO review the petition in same manner. That is why some colleagues were able to make through it, while your friend wasn’t. Ask your employer that in light of recent 221g, what their expected response is. Chances are VO would have made a note of your company that even though they are service based and not product based, they submitted the petition for a product based job.

      Reply
  47. Currently i am working in US for company A which is a big desi outsourcing company and holds my H1B. My Visa is going to expire on 31dec2011. Company A havn’t filed my H1B extesion yet and they are still delaying filling the extension and giving absurd excuses that it would be filed in a week or two. I do not trust them and want to keep other options available for me.
    There is another Company B ready to file my visa extention+visa transfer in premium processing. I want to play it safe and want to switch to company B only when they complete my Visa extension and visa transfer. My questions are:

    1) if company B files my extension and visa transfer (while i am still in company A), would company A come to know about it? cause then they might end my deputation immedately and ask me to go back to my home country.
    2) If not, latest when the company A will come toknow that my visa extension + transfer is approved/completed and now company B holds it?
    3) what happens if company B starts the extension+ transfer process in premium processing but before it gets approved, meanwhile company A also files my extension application (though chances are very low, but i want to make sure it wouldn’t put me in any legal complications)?
    4) if my visa extension application from company B doesn’t get approved, would company A still come to know about it. because if not, i can still continue working for company A?
    5) any other piece of advice from your side?

    Reply
    • 1. No they won’t
      2. Never, unless you or someone tells them about it
      3. No legal complications. You can either work for A or B. Once both petitions are processed, you can continue to work for A or B depending upon what petition(s) got approved.
      4. No, they won’t
      5. Make sure B files the paper before your I-94 expires.

      Reply
  48. I applied for H1B through my current employer. I got my H1B stamping done last year in Sep 2010. But still, I am not able to fly to US, as my employer is not sending me to US(not due to recession ofcourse, but due to some silly illogical reasons. Kindly guide me what should be my next step. I know there is recession there in US, but in my case the reasons for not being able to land there are different.
    My H1B is valid till 2013. Can I try for H1B transfer from here in India itself? I know, I might sound silly but still..Can I fly to US and look for H1 transfer? Do I need some documents and letter from my employer before I fly to US?
    Thanks

    Reply
    • You can find another employer and have him file H-1 petition for you. You can submit copy of existing petition to show that you have already been counted in the quota, and USCIS will treat it as H-1 transfer. Do not enter US on old petition unless the old employer wants you to come to US. Once the new employer’s petition is approved, you can use that along w/ old visa stamp to travel to US.

      Reply
  49. Hi Actually i got H1B approved personally through a consultancy in US but he is not ready to provide me the client letter due to bad situations over there and it is valid till 2012. My question is, Now my present company is having requirement in US so can i transfer the same H1B with my current company.

    Reply
    • Yes. Your current employer can file a H-1 petition and submit the existing petition as proof that you have already been counted in the quota. This would make you cap-exempt and would constitute as H-1 transfer.

      Reply
      • Hi Saurabh thanks for your reply. Actually i need one clarification from you, My H1B is not stamped it just got approved and now i am in India so i got a chance through my current employer in India so in this scenario can the transfer be possible by my current employer without any tweaks…Thanks in advance.

        Reply
        • Same answer as before. Once the new petition arrives, you can go for H-1 stamping through your current employer and then travel to US.

          Reply
          • Hello Saurabh if my current employer ready for the transfer as you said before. How much time it would take for the transfer process…Thanks in advance…

          • Regular processing would take 2-6 months, while premium processing would take 15 calendar days. In case RFE is issued, then the process will take longer.

  50. Currently i am staying in US and plan to go back to india from Apr2011- Aug 2011. I know my employer A won’t allow me to go on such long leaves, so i’l have to quit my Job from employer A. My current H1B visa is going to expire in 2012.
    can i stll utilize my visa after Aug 2011, when i try to look for a new employer B, even though i had no employer during Apr2011- Aug 2011?

    Reply
    • Yes you can, but you cannot enter on that visa unless you have employer ready for you in US. You should enter US only when you have an employer calling you to US. So if you have resigned from A and B isn’t there yet, then you should not enter US even if you have a visa stamped.

      Reply

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