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 Saurabh,
I got my H1B visa status last year and started working for a company A from Oct, 2011. I haven’t gone for my visa stamping yet. But now I got an offer from company B and want to join them. My questions for you are:
1) Can I transfer my H1B visa status to company B and join them without visa stamping? Is this a common thing and safe to do so?
2) If yes and if I join company B then will it be risky for me to travel to India in the future to get my visa stamped since the original company to apply for my H1B was company A?
3) Can I go to countries (like Canada or Mexico etc) other than India/Home Country to get H1B stamping?
Please let me know.
Thanks!
Raghav Mohindru
Raghav,
1. Yes, that is possible
2. No, it won’t impact your H-1 stamping
3. For 1st H-1 stamping, one is recommended to go to home country. If you have done Masters in US, then you can still go to CA or MX, but have contingency plans in case 221g is issued or visa is denied.
Thanks a lot Saurabh. Really appreciate your help.
I have a couple of follow up questions, could you please answer them based on your experience:
1) I am currently working for a mid sized company and few of my friends, who are working for small companies (not for black listed companies) as well, went to India for stamping and they got stuck there (one of then did his masters from US and other one got his H1b transferred and then went to India for stamping). Do you think now in general is a bad time to go to India to get visa stamped? Or do you think it varies from employer to employer? What factors make you get stuck in India for visa stamping?
2) Based on your experience, do you foresee the situation improving (with elections coming up)? Is it worthwhile to wait for few months and then go for stamping?
Thanks in advance for your reply.
Raghav,
1. Small to mid-size consulting companies are subject to such close scrutiny. Large companies are still safe, but even some of their employees end up getting 221g issued.
2. I don’t think the situation would improve. It’s not related to which party is in power, but more to do w/ the economic slowdown and heavy misuse of the visas in the past.
Thanks for your reply Saurabh!
Hi Saurabh,
I got RFE for my petition(applied from consulting company) and it might take another 2-4 months to get the final decision.
Now my company is willing to process H1B, Can they apply H1 transfer at this stage (want to start working before oct). Or should we wait until the status turns approval.
Regards,
Krishna
Krishna,
If the previous petition has not been approved yet, you cannot go for H-1 transfer. Only if the previous petition has been approved, can you go for H-1 transfer.
Thank you Saurabh.
One more question, Will there be any problem in future because of this RFE??
Either applying from some other company or extension later (if approved) etc.,
Krishna,
RFEs don’t impact future filings, but denials come if the reason is attributed to false documents submitted by you or you breaking US laws.
Hi Saurabh,
What is the probable month the H1b new visa filing Cap is likely to reach the quota this year 2012.
Will there a huge rush this year. I am going to apply in may 1st week 2012. Would that be OK? Are there any websites which publish the numbers of visas applied everyday.Just to monitor the quota. Please help
Meena,
You can check on the USCIS website about the number of H1 petitions being filed, i am assuming the quota may fill in by sept-oct, though there is no definite way you can predict.
Meena,
I don’t think it will be a huge rush, but can get reached faster than last year. I am guessing it would get over by Sep-Oct types. The only source of information is USCIS website, which publish weekly counts and other sites take a cue from it.
Hi Saurabh,
I have moved from Company A to Company B on 5-Dec-2011. We filed normal H1B transfer and receipt date is 30-Nov-2011. And my last day in Company A is 30-Nov-2011. In Company A, I have resigned on 14-Nov-2011 so they didn’t generate pay stub for 15-Nov-2011 and 30-Nov-2011 (company A pays on every 15 days). As a process, they generated by “Full & Final Settlement” pay slip on 31-Dec-2011. I believe, company A has not canceled my H1 B as of 30-Nov-2011.
My questions:
1. In the H1B transfer process, I have submitted the pay stubs for period 01-Aug-2011 to 31-Oct-2011. Since the “receipt date” is 30-Nov-2011 and I don’t have paystub for the Nov-2011, will USCIS raise RFE related to Nov-2011 pay stubs? Will they expect a pay stub If there is such RFE, can I submit the pay stub dated “31-12-2011”?
2. My other important question is that we have submitted PO, SOW and all necessary documents. But we didn’t submit the client letter then. Is client letter mandatory in H1B transfer process? My current model is
Employer -> Vendor -> Client
3. Current client is ready to give “client letter”. Is it possible to add the client letter in the on going H1 transfer process as an amendment ? Or need to wait for their response and proceed accordingly ?
Thanks a lot for the clear explanation & help.
Ranjith,
1. Yes, they might ask for the Nov payslip. You can submit the Full & Final Settlement along w/ a letter explaining why it was generated and not a payslip (may be company policy etc).
2,3. You cannot add the client letter while it’s pending. In case USCIS issue the RFE for the client letter, you can then submit that additional document.
Hi,
I have a Valid H1B visa stamping and a petition from Company A. I have however not yet travelled to the US on that Visa. I now have an offer for employment from Company B. Can the Visa be transferred? Since I do not have an I-94 and an SSN as yet, would the transfer be a problem
Hope you could let me know.
Thanks,
AP
Arun,
You fall under scenario 1. Another company can file the cap-exempt petition for you and can transfer the H-1.
Thanks for the information Saurabh!
Hi,
I worked in US for a company and got H1B till March 2013. I moved back to India in April 2011. Now I found a job and want to go back to US. Can I apply for H1B with new employer from India? Do I have to apply only in April? or any time in the year?
Thanks in advance.
Krishna,
The new employer can file a cap-exempt petition for you on the basis of your prior petition. You don’t need to wait for April for the filing or for Oct to start working on H-1.
Hello,
Can you please let me know whether H1 transfer from Company A to Company B can happen from India?.
1) Company A has filed my H1 on 2009 and validity till 2010
2) I had travelled to US for 6mnts and extended the H1 first time and got approval till sep 2013
3) I have returned back from US and Visa is expired but petition is valid.
I would like to know whether Company B can transfer my extended petition or
apply for fresh H1?.
Pavi,
B can file a cap-exempt petition for you. Once it has been approved you will have to go for H-1 visa stamping (as your current stamp has expired) and then travel to US to work for B.
Hi Saurabh,
I am employed in Company A have valid h1 till Sept 2012 and I got an offer from Company B. Company B applied for an H1 transfer and it is approved till Next year. I am getting married and I need to travel to India in March and have to get the H4 stamped for my spouse. Company B is suggesting me to join them after I come back from vacation. I have following question,
I can get my spouse’s H4 stamped through company A, but when I return to USA both our I94 will be issued till Nov 2012 (petition date of current h1and visa date). After arriving in USA and if I join Company B , what is needed to be done to extend the I94 for myself and spouse to the new validity date of the H1 transfered petition.
Thanks and Regards,
Sebastian
Sorry for the typo it Sep 2012
XYZ,
When your I-94s are about to expire, the employer will have to file for I-94 extension. The USCIS will then issue new I-94s valid until B’s petition expiration date.
Thanks saurabh,
Is there any additional documentation needs to be done Before I join b for my spouse as the h transfer was done only for me ? Can I just join company b once I return ?
Sri,
Nothing additional required. I am assuming your spouse would have already done H-4 stamping through A and traveled to US on that visa stamp. When the spouse’s H-4 I-94 is about to expire, they will have to file H-4 extension for the spouse.
As B’s petition would already be approved, you can join them on your return w/o doing anything else. You can check w/ B’s attorney as well.
Saurabh,
I have an offer from another company but they will take some more time to file my H1B transfer. I have my I94 valid till Oct 2013. I’m want to take vacation (with in US) before I join the new company, so want to resign even before the FedEx receipt for transfer is received. Now here are my questions.
1. My company has 15 days notice period, say if they apply for revocation of VISA to USCIS as soon as I informed them about my resignation and gets approved before my Transfer is filed, will I be in trouble? How fast will USCIS will revoke my petition?
2. Can I stay and travel within US as my Transfer is not yet filed and but USCIS has received a request for revocation?
Thanks,
Sai K
Sai K,
I will thrown in some dates to better understand your scenario. Let’s say you resign from A on 1st March, and have to serve notice period until Mar 15. You plan to take 2 week break, and new employer’s (B) receipt will reach USCIS office on Mar 31.
1. You are good until Mar 15, as that’s your last day of employment w/ A. After that, you are getting yourself into the gray area.
2. As long as the stay is reasonable you can, but it’s a gray area. This means, it will be up to USCIS whether to ignore the vacation period, or issue RFE for the same. From USCIS’s perspective they can think that you were out of work for 15 days and then another employer filed H-1 for you. So basically you were out of status for 15 days. Or they can agree that you were on a reasonable vacation period, and were not working. It will depend upon how your case is presented before USCIS and also on the case officer’s discretion.
Hi ,
I have got an email from the US embassy stating that they cant grant me a visa and they are sending the petitions back to USCIS for review and possible revocation?
Is it possible to file for a new H-1B petition under a different and get the same approved.
Lavesh,
Yes, another employer can file a cap-exempt petition for you, and once approved you can go for H-1 visa stamping.
Saurabh,
I am on H1b and moved from employer A to employer B, my visa from employer A is valid till Oct 2012. My dependents (spouse and child) are currently in india. Their visa is also valid till Oct 2012. I have name of employer A listed in Visa page on passport. Once i receive approved I-797 from employer B can my family travel back to US with existing visa or do they need to go for stamping again.
What are the supporting documents needed for for family to travel back?
Thanks In advance
Param,
They can use the existing visa stamp and new petition to travel to US. They don’t need to go for H-4 stamping as long as their current visa stamp has not expired.
hello saurabh,
i am in a real mess. Let me explain it to you. I came to india for the stamping of my H1B visa. I got 221(g) and they kept my passport and was aksed to send the tax docs of my employer. My employer refused send this information coz of confidentiality issues. So, i thought of changing the job and get my H1B tranferred. I found a job and transferred all the documents. The LCA was approved,but my lawyer has not applied for transfer. In the mean time, I emailed Embassy to return my passport as I want to reapply for the stamping of my transferred visa. Yesterday I recieved the passport along with a letter stating that ” you visa was refused coz you have chosen to withdraw your H1B petition and it will be informed to USCIS. Now US embassy is unable to answer any of queries.”
This was dated on 14th feb. i have checked USCIS website, it does not have any recent activity.
What should I do in this case? Does this mean that I won’t be able to get my H1B transferred. Does this mean my H1B will be cancelled???????
Please help.
God bless you.
udiksha saini,
What will happen now is that the consulate will send the information back to USCIS for review. This may take couple of weeks. USCIS will then review the petition and contact your employer about the same. Once contacted, your employer may ask you why you requested for your passport to be returned. The petition would continue to be reviewed and processed and may get reinstated or revoked.
Meanwhile, the other employer can continue processing the new H-1 petition. IMO, you should get it processed under PP so that it gets adjudicated ASAP. Once approved, you can go for H-1 visa stamping.
Does that clarify?
Thank you so much Saurabh. I am asking my lawyer to process it ASAP.. under PP. Idk why is he taking so much of time.
Thank you so much for your help though. Appreciate your time and help.
Take care and have a good day. God Bless you 🙂
Hi Saurabh,
I have moved from Company A to Company B on 5-Dec-2011. We filed normal H1B transfer and receipt date is 30-Nov-2011. The H1B transfer is still in process. I have sent all the necessary documents and my employer submitted it to USCIS.
My issue is that i lately understood that i have provided my 2010 W2 which had wrong SSN in it. In 2010 i was in USA for 3 months and went back to India. I have corrected the tax details but didnt get a corrected 2010 W2.
It seems a big issue. Please advice what i have to do to get prepared ? I guess USCIS may raise RFE for this. And not sure how to handle this situation ?
Really looking for your help. Thank you.
Hi Saurabh,
Some more details about my previous query.
All other paper work except 2010 W2 are proper and its been submitted to USCIS. My previous H1B visa was valid till Aug-2013 but because of some situation i have to leave the Company A and join Company B. The Company A should have sent the letter to USCIS for my H1B cancellation. My H1B petition starts with WAC so i believe it is processed by California USCIS office.
My questions are :
1. As there is issue with my 2010 W2 form, what will be the repercussion ? Will USCIS raise RFE or deny my request in first place ? How i could get prepared for the RFE ?
2. If i get an RFE, in what duration i have to submit the documents ? How much time will i get to answer the RFE ?
3. My H1B transfer receipt date is 30-Nov-2011 and its in normal process. Any idea how long they may take to process normal H1B transfer these days?
Thanks a lot for all your help.
Ranjith,
1. I don’t think its a big deal, but if they need more information they would issue RFE. You can be prepared by collecting information and documents that explain this discrepancy
2. Usually employer is given 60 days to respond to the RFE. Actual time will be mentioned in the notice
3. 2-4 months but it can take longer as well.
Ranjith,
I don’t think it will be an issue. However, in case USCIS find an issue they would issue RFE and your employer can then submit the updated information along w/ the explanation for the discrepancy.
Thanks a lot Saurabh for all the help & guidance.
I’m trying to get “W2-c” from my previous employer and i believe, i could submit the “W2-c” in case of any issues. In the “W2-C (change)”, my previous employer can correct my SSN. Please let me know if you have any idea of what kind of document need to be prepared in case of wrong SSN in W2 form.
Thank you so much for the guidance.
Ranjith,
That document should be sufficient along w/ a letter explaining the discrepancy.
Hi Saurabh,
Thanks for the details.
I checked with my current employer and came to know that they actually didn’t submit my 2010 W2 along with my H1B transfer documents. The reason could be that in 2010 I stayed in US only for 4 months and my wages were not good. As of now, I heard only this as a reason for not submitting the 2010 W2.
My questions are
1. Whether W2 is mandatory in H1B transfer process? If we didn’t submit W2 forms (as like my case), will USCIS raise any query?
2. In your best knowledge about H1B transfer, could you please mention what are the items asked in RFE?
3. Also what are the major reasons in H1B transfer denial which you aware of?
This could help to get prepared. Please help.
Thank you.
Ranjith,
1. It is not mandatory but good to submit. If USCIS has questions regarding your 2010 pay, then they would ask for that W2.
2. It can either be related to you (education, experience, adherence to legal status etc) or to employer (size, wage reports, tax returns etc) or to the job (client, project, SOW etc).
3. If USCIS is not satisfied w/ the information/documents submitted as part of the raised RFE.
Great. Thank you so much for the clarification.
Dear Saurabh
I am working for an IT company in India. The H1b Petetion (I-129) submitted by my Employer to USCIS mentions employment duration from Nov 2011 to Nov 2014.
I recieved I-797B with Validy from Dec 2011 to Dec 2012 and I went for Visa Stamping and my H1b visa also has same (I-797B) Validity till Dec 2012.
1. When I reach US, the I-94 given to me will be carrying the same validity or it will carry the petetion date?
2. Am I eligible for H1b extension or I need to come back once my Visa Expires.
3. If I am eligible for extension, Can you please guide me on the process and what needs to be done i.e. do my employer needs to file a fresh petetion or request for new I-797.
Thanks a lot!!!
Mia,
1. It will be valid till Dec 2012 which is the date mentioned both in your 797 (petition) and visa stamp
2. Either same or a different employer can file for H-1 extension.
3. They would have to do the same paperwork again as they did for the original H-1. Along w/ rest of the documents, they will have to send copy of your US paychecks, W2 (if any) and current 797 copy to show that you are already on H-1 status and have been maintaining valid legal status. Based on submitted documents, USCIS will either approve or deny the petition which will or will not allow you to continue to live in US.
Hi Saurabh,
I was working in UK earlier and have a tier-1 valid till 2012 December.
I am in US now on b1 visa. When applying for h1b in May 2012 and after approval, Can I go to UK and get it stamped instead of India?
Success rates in stamping looking v low. What do you suggest the best. Please help out.
Samba Siva,
It is preferred to go to home country for the 1st H-1 stamping. If you have not done your education in UK, there is a strong possibility that you will be asked to go to home country for visa stamping.
You can also email/call US consulate in UK and ask them about their policy on TCN (third country nationals).
Hello Saurabh,
I have transferred my H1B from Company A to Company B in US.
My Visa with Company A was valid till Sep2012 and the same data exists in the Visa and I94 also.
My new H1B has been approved with Company B.
If I travel to India in June and return by July this year, Di I need to go for re-stamping?
Can I just go and come back?
Can I stay in US even after sep2012 without stamping after returning back from India.?
Sanjay
Sanjay Jha,
You don’t need to go for stamping as long as your current visa stamp has not expired. It is ok to travel on B’s petition and a visa stamp mentioning A’s name. You must have received new 797 from B, right? On your return, you will be showing that petition and the officer will issue you an I-94 valid until that expiration date. You can continue to stay and work until that date.
Does that clarify?
Thanks Saurav.
That helps
Hi Saurabh,
I am getting my H1 visa transferred to new employer in US. My question regarding this is :
1. If after joining new employer I go back to India to visit do I need go to for stamping ?
2. My new employer did not file I-539 for my dependents when I joined. If my dependents go to India for a visit do they need to go for stamping ? There current I-94 and stamping having my previous petition number and previous employer name has date till Sept 2013.
Samit Grover,
1. No stamping is required as long as your current visa stamp is valid
2. No stamping is required as long as their current visa stamp is valid
In both cases, valid visa stamp and an unexpired 797 petition is required to travel back to US.
Hi Saurabh,
Thanks for the reply. One more clarification.
In both cases if my previous has revoked my H1B, then also me and my dependents can come back to US without stamping?
Regards,
Samit Grover
Samit Grover,
Yes, unless the employers asks for their passports to get the visa stamp canceled. As you will be working for the new employer at the time of their return, they need to show new employer’s approval notice.
hi Saurabh,
I have a question – I am currently in US on H1 (employer X). My current H1 expires on Jan 2013. However, the 6-year period gets over sometime around end of 2014 (per the calculation). I am also looking out for a suitable opportunity elsewhere and in fact have a couple of them scheduled. I was wondering how to put my case in front of the recruiter so as they don’t get confused with H1 expiry being less than a year. Also, will my H1 transfer extend the current expiry date (ie Jan 2013) by any chance?
Thanks in advance!
Amit,
You should tell that you are eligible for 2 more years on H-1. Your current H-1 expiration date doesn’t matter much, as the new employer will have to file another cap-exempt petition and it’s duration will depend upon what your employer requests, what USCIS seems appropriate and how much time you have left from the 6 year limit. In other words, your new petition can very well extend beyond 2013.
hmm…. so if I understand correctly, it doesn’t necessarily mean that the new employer will have to first invest for my H1 transfer (say if I quit in Mar-Apr) and then again after a few months (say Sept-Oct) it will have to think about my H1 extension….
Well, many thanks for the effort that you put in clarifying all these queries….
Cheers,
Amit
Amit,
That is correct. The new employer can get a term which extends beyond your current expiration date.
Hi Saurabh,
I have my H1B from company A in India, now I am in USA working for a client. If, I transfer my H1 to another employer B in USA, is it possible for company A to cancel/revoke the VISA ? At what stage of h1 transfer they can do this?
My concern is, what happens, if the company A cancels/revokes my VISA while it is still in the process of transfer.
Thanks
Ravi
Ravi,
When you file for H-1 transfer A will not know about it unless you or somebody else specifically tells them about it. In most cases they come to know about transfer at the time you resign from them. At this point, they can send your old petition for revocation to USCIS, but this won’t impact your H-1 transfer or the newly approved petition. Problem would arise if you resign before your transfer is approved, then A revokes the petition and finally H-1 transfer gets denied. As part of their company policy they can also ask you to submit your passport to cancel the visa stamp, which is up to you whether to oblige or not.
Does that clarify?
Hi Saurabh,
Thanks for your response.
To revoke the VISA, don’t they need the original petition ?
Santosh
Ravi,
To revoke the visa they need the passport. To revoke the petition they can just send a letter to USCIS requesting them the same.
Even after the trannsfer can they revoke ?
Ravi,
Yes they can. Petition is their document (they are the petitioner and you are just a beneficiary) and they can revoke it anytime. However getting the visa stamp canceled is more difficult as it is on the passport which is your document. So it’s up to you whether to give your passport to them or not.
Hi Saurabh,
I am little confused.
Lets I transferred my H1 to new employer and got the petition from the new employer. Even, in this case also, the old employer can revoke it? If so, I am always bound to the old employer and will never become free from him.
I am planning to resign from my employer in india and transfer my H1 to another employer here in USA.
Old employer processed my H1 on BEP scheme.
What’s the best and safe approach for me?
Please guide me.
Thanks
Ravi.
Ravi,
Even if they revoke it, you can still work for the new employer on the basis of new employer’s petition. So why do you think you are tied to the old employer?
Let’s say your H-1 is revoked by employer before your transfer is filed. In this case, the new employer can still file cap-exempt H-1 petition for you. Revoking the H-1 doesn’t mean that another employer can file cap-exempt petition (aka H-1 transfer) for you.
hi Saurabh,
recently we had found posts where h1b guys have been for stamping and got their stamped on the spot. Cant that be with consulting companies ? would 221g issued for sure even if PO is submitted in Sept 2012?
Regarding my query, is it ok if i exit in july (1 month before the expiry of b1 visa I-94 august) and return back after 2 months on B1 ie in August on B1 again and then apply for premium processing h1b. That way I can stay continously if h1b is approved from oct 1st 2012. How about this ?
Saikrishna,
When working for a consulting company getting H-1 visa issued w/o 221g is the exception and not the norm, as opposed to some years ago when successful stamping was the norm and 221g was the exception. At times 221g is issued so that the officer can review your submitted documents in detail rather than just scrolling through them during the interview.
As you would have stayed for 5 months on initial B-1, your 2nd entry may not get approved. Even if it does it will be mentioned in your file that you have traveled to US too frequently on B-1 (I think they allow only 6 months of travel per 365 days).
Hi Saurabh,
I need to fix an appointment at Chennai consulate for H1B. Could you please let me know what would be the visa application fees for the same? Am aware that I need to get the receipt from HDFC bank. Just wanted to know the amount.
Kiran,
Last time I checked it was 8100.00 + some service fees. You can get the latest numbers from VFS website (they keep changing it on the basis of USD-INR conversion rate).
Hi Suarabh,
Thank you for your repsonse to my first question. I have another question. Company A sponsored my H1B in Oct 2011, now I am quitting and going to join Company B. However, company A asked me to pay them back the H1B costs, including H1B filing fee, anti fraud fee, ACWIA fee and attorney fees. First of all, I never sign a contract/agreement with Company A saying if I leave them, I need to pay them H1B costs. Secondly, there is no clause under our employee handbook saying that. How can I handle this situation?
Thanks,
Shushu
Shushu,
Legally, the employer is suppose to pay for the filing fees. However, the attorney fees can be paid by either the employee or the employer. You can tell the same to the employer. If one changes employer soon after starting the employment, then that’s a business loss for the employer, which is part and parcel of working in the consulting world. However, it seems like this would mean burning bridges w/ old employer and you may not get any support from them in future (related to experience letters etc). If they send you a notice through their lawyer, then you should consult a labor attorney for further course of action. They cannot demand that money from you.
Saurabh,
I am working with company A for more than 2 years. My H1 got expired on Sep 2010 and got extension. I have not got new stamping.
Got an offer from company B. They will start filing H1 Transfer on March 12. Not sure if it is regulare or PP.
New Company is going to file H4 transfer also for my wife and son.
1. Can I send my wife and son to India for vacation? (they will leave before or after March 12. they will be back after 3 or 4 months only)
2. When they come back, do they need to go for H4 stamping again for new employer? (Their H4 visas are valid until Sep 2013 but with my current employer A)
3. If they cannot travel, when can they do so? I mean if they depart before Mar 12 and comeback after I joined the new employer.
Thanks
JK
JK,
1. Yes
2. They can travel on old visa stamp (as it is still valid) but would need the petition from the employer you are currently working for. So if you have started working for B, then they would need B’s petition else A’s.
3. They can travel anytime as long as they can have copy of your B’s 797 by the time they return.
Few more things:
– If they have to travel, then it’s better not to file for their transfers as it would be abandoned once they leave US. H-4 transfers are filed so that USCIS can issue them new I-94 based on your new 797 expiration date. However, this becomes abandoned as soon as they leave US. They would be issued new I-94 on returning to US, which would control how long they can stay, and would be same as your new 797
– PP fees can be paid either by you or employer. So if paying PP helps in speeding up the process and allowing your family to return on B’s petition, then that should be the preferred option
– In case B’s petition is stuck (in regular or RFE), it may still be ok for them to return showing A’s petition, B’s transfer receipt and your recent payslips. However, not all PoE officers may be ready to accept these documents, you will have to check w/ your attorney on this.
Thanks Saurabh.
“- In case B’s petition is stuck (in regular or RFE), it may still be ok for them to return showing A’s petition, B’s transfer receipt and your recent payslips.”
I will join to new employer only after H1 Transfer is approved. Until then I will be with employer A. So whenever they come, they will have one approved petition either from employer A or B. So I hope it will not cause any problem. Am I right?
I prefer to send them to India and not to file their H4 Transfers. In such case if my transfer is approved when they come back, should they go to chennai consulate for new stamping?
if they can come back with Old Visa stamping and B’s Petition, should they wait for my 3/4 paychecks before travelling?
Thanks
JK
JK,
If you would still be working for A, then they can show A’s petition while retuning back to US. No stamping is required as their current visa stamps are valid 2013. They would need your 3 recent paychecks, which will be from A as you would be still working for them. If you would have started working for B, then it would be 3 most recent paychecks, which can either come from A or B.
Once they return to US, they would be issued I-94 based on A’s petition expiration date. However, once your H-1 transfer is approved, you will be getting I-94 based on B’s approved petition expiration date. In other words, their I-94 may end earlier than yours. It’s not a big concern, just that you will have to remember to file for their extensions before their I-94s expire. This may not be a concern at all if B’s petition gets approved by the time they return, in which case their I-94 and your I-94 would expire on the same date.
Does that clarify?
This is brilliant Saurabh.. Thank you..
I have one more option that I can travel to India along with my family on August. In such case, I should go to stamping since my visa already got expired and extended within US and also switching employer. My question is should I take my family also for stamping? My friends told me if I switch the employer, family (h4) also should get stamped with new employher. Is that mandatory or optional?
Thanks
JK
JK,
It is not mandatory for them to attend stamping as long as their current visa stamps are valid. However, there have been an increase in number of cases that get delayed during stamping (221g and/or rejection). So be aware of this while going this route.
Hi Suarabh, you kindly anwered my questions in the past can you please answert he scenario below
I had an H1B transfer from employer A to employer B, H1B with employer B was approved without I-94 asking me to go for a consulate processing in India or apply for a I-290 B. If I have applied I-290 B with supporting documents and waiting to hear from them
In the notice given by USCIS it is mentioned as : The decision leaves the alien without lawful immigration status and alien is therefore present in the united states in violation of law. the alien is required to depart united states. Remaining in united states without authorization may result in the initiation of removal proceedings against the alien and may affect their ability to return to the united states in the future
It has been 5 months I have applied for I-290 haven’t yet heared from them, does the 180 days unlawful presence rule for 3 year bar deportation applies to me or my situation if so can you please explain. I am in United states and waiting to hear from them and reaching the 180 days limit.
are there any workarounds for my scenario above
you feedback is highly appreciated
Ravi Kumar,
Are you still working for A? If yes, and if A’s I-94 hasn’t expired yet, then you should be fine. It would have been an issue if the current I-94 would have expired.
I-290B can take few to several months to process. Filing I-290B doesn’t allow one to stay in US while it’s pending. You should also talk to an experienced lawyer ASAP.
Thanks a ton Saurabh, I am not working for employer A anymore,
I am still with employer B waiting for my Approval, are there any other workarounds for me apart from out back to home country for stamping
Ravi,
Please consult your lawyer about this, but I don’t think there are any other options. Although you still have valid I-94 from A, but I am not sure if it allows you to stay and work for B.
Hi Saurabh,
My got H1 stamping.My employers’s name is printed on my Visa.It was a BEP. Is this normal and will it have any affect if I transfer my job in future based on the current Visa?Also I heard that my co cancels H1B visa once an employee resigns from the company. So in that case what would be the options for me to switch my current job?Is this valid only when am in India or in US as well? How much legal is this?
Mahesh,
AFAIK, applicants through BEP companies have easier visa stamping experiences, but there shouldn’t be any impact when it comes to H-1 transfer. If your company cancels the visa stamp when you resign from them, it means you will have to go for H-1 stamping again once you have an approved petition from another employer. This stamp would be required only when you are out of US and want to enter US on H-1 visa.
Hello Saurabh ,
Had a question on the h1 transfer
I have my initial h1 approval for 1 year till Oct 2012 . The client that I am working for wants to hire me full time.
I have not had my stamping done as yet ….. what would be the best way to approach the transfer from my company to client … should I ask the lawyer to do the process ina way that the extension carries me through for the next 3 yrs?
Will my case of not having the initial approval stamped, have any effect?
Thanks
Hari
Sri,
You should ask the client to file cap-exempt H-1 for you on the basis of existing approved petition. The company will have the option to request it for 3 years or less. Once it has been approved, you can go for visa stamping and then travel to US to work for the company.
Karan ,
Had a question on the h1 transfer
I have my initial h1 approval for 1 year till Oct 2012 . The client that I am working for wants to hire me full time.
I have not had my stamping done as yet ….. what would be the best way to approach the transfer from my company to client … should I ask the lawyer to do the process ina way that the extension carries me through for the next 3 yrs?
Will my case of not having the initial approval stamped, have any effect?
Thanks
Hari
Hi Saurabh
I am working for company A and my current employer has filed for extension. I got RFE and USICS is asking to provide the employee -employer relation ship. Is end client is sufficient to satisfy the RFE. Do i need to provide any organizational chart and any other documents.
I have another question. I am also looking for another job. Can i transfer my H1B while my extension is in progress and when i got RFE for my H1B extension. If i transfer my H1B is there any chance to get RFE for transfer also?
Arya,
What they are looking for is information on how your employer controls your daily/weekly activities, prioritization of tasks, reporting structure etc. Are you working for a direct client or is there a vendor in b/w? In that past, I have seen people submitting information like
– presence of employer at the client site who you report to
– daily/weekly meetings b/w client and employer, and employer and you to prioritize work, tasks and get status updates
– review of timesheets by the employer before submission to client
etc
You can go for H-1 transfer as long as your I-94 hasn’t expired yet. If it has expired, then H-1 transfer may not get approved w/ I-94 attached unless H-1 extension gets approved first. H-1 transfer may still get processed and approved w/ consular processing if I-94 has expired.
Hello Saurabh,
Is it just a written document or some proof required to demonstrate how the supervisor regulates the work, etc? Time sheets are one document which can be furnished and proof of a supervisor at client location (I cant think of any other!!!)? I wonder how visa officials would believe just by mention of the above statements in documents. If verification has to be done in person, it may lead to a long wait, wont it?
How does it work with employees who havent started their jobs yet? How will they demonstrate the employer-employee relationship?
Thanks
Jay,
You will have to submit written information, and then most likely they will do background check by contacting employer, client or doing site visit to know if that’s true or not.
In case the employee hasn’t started the project yet, but there are other employees contracting for the same client, then that would help. They may also ask if the client is going to pay for the supervisor who will be sitting at the client site. There is no right or wrong answer to such RFEs. It’s more about explaining the structure in such a way that its reasonable, and satisfies the requirements. In addition, it needs to be true.
Hi Saurabh
There is no vendor between me and my employer.
Arya,
EC models have better chance of approval as compared to those working in EVC model.
Thanks for you answers
I have another question. If i shifted to new house in the same city and same zip code (in fact i have shifted different house in same apartment)
do i need to inform USCIS about address change. My employer has filed for the extension. Technically my employe address is the address of record in my case, since they are the petitioner.
Arya,
You need to fill AR-11 form whenever you change residence, even if that means just change in apartment #.
saurabh
Actually we need to change in 10 days after changing the address right?But i have delayed since i didn’t know about this process. My case manager is saying that, technically my address in my petition is my employer address and it will not effect my petition.
But personally he is suggesting now to change it and he told me that it is up to my choice. Still i have doubt whether i can change now or not since i have shifted to a new house 3 months ago.
Arya,
It is ok to change it even now. This is not related to your petition address (which is the employer address), but it’s a USCIS requirement for all immigrants in US.
Arya,
BTW, I don’t think they do address verification to see if the dates entered are correct or not. It’s mainly for reporting purposes and for them know where all the immigrants are.
Hi Saurabh
I got my 3 years extension approval till May 2014 from USCIS in April 2011. for some personal reason and visa stamping purpose, I travelled back to India in May 2011 1st week . my client company didnt provide client letter for Contractors, so my stamping got rejected . In September 2011 I received a letter from US consulate that your employer is not able to provide job so we are denying it. I worked from home till September 30 th 2011 .
Here are my question to you
1 . Can I transfer my H1B to some other employer ?
2. Can I file new H1B petition through different employer in April 2012.?
3. or would US consulate reconsider my case if my current employer provides me a Client letter of some other client.?
Regards
Sidh
Sidh,
Your petition must have been sent back to USCIS for review. Do you know what happened to that petition?
1. IMO (you can check w/ an attorney as well), you can file for H-1 transfer as long as USCIS doesn’t revoke the petition. Even while they are reviewing the petition, another employer can still file cap-exempt petition for you
2. This is very much available. If you go through the cap again, then your H-1 clock will be reset (as you are staying out of US b/w May 2011 and Oct 2012)
3. Answer to this would depend upon where and what stage your petition exactly is at the moment.
Hi Saurabh,
I got my H1B approved on Oct 1 2011 from Company A. Now I got a job offer from Company B and they are going to sponsor me. My last day in Company A is Feb 21st, and I will join the Company B on Feb 27th. I am just wondering if Company B has not submitted the H1B Transfer Petition by Feb 21st, will I considered to be out of Status in US?
Shushu,
Yes, you might be. However, the gap will be 1 week which should not be a big problem. Lot of people take a week break to relocate or take a vacation before starting the new job.
I have few questions on H1b Tx.
If i have attended the interview and got 221g
1> and my employer doesn’t give the requested documents. Can another employer treats this case as H1b Tx?
2> employer gives the requested documents but status is not yet out. Can another employer treats this case as H1b tx?
3> employer gives the requested documents but my H1b gets rejected. Can another employer file H1b in cap exempt quota?
Thanks!
Need Advice,
1. Yes based on your approved 797
2. Yes based on your approved 797
3. If the petition is sent back to USCIS to reconsideration and they revoke the same, then it cannot be used for transfer. Until then, it can still be used to file another cap-exempt petition.
Thanks Saurabh,
Some more clarifications on it. If I-539 is not filed for them.
Scenario 1 : If my previous employer revokes my H1B, will there stamping and I-94 will be valid, as on both my previous employer name and my old petition no. is written.
Scenario 2: If they go to India without I-539 approval to India, Do they compulsory need to go for stamping with my H1B approval notice ?
Samit Grover,
1. Yes, it will still be valid until the their expiration date.
2. They need to go for stamping only if their existing visa stamps have expired. While returning back, a new I-94 will be issued on the basis of your current 797.
Hi,
I am working for employer “A” in US for more that a year. Now I am planning to join employer “B”, so they started my H1B transfer but they are telling me I don’t need to file I-539 for dependents as they still got more that 1 year on their I-94. So my question when I change job, isn’t it compulsory to file I-539 for my dependents ? If they want to visit India or if my employer “A” revokes my H1B visa after my joining employer “B”, their status will become illegal without H4 approval notice with new Petition No. and Petitioner?
Samit Grover,
It is not mandatory to file I-539 when doing the transfer. This is b/c dependents status is attached to primary applicant (H-1 holder) and not to the petitioner (employer). However, if you get new I-94 valid for 3 years from B, then your and your dependents I-94 will go out of sync. It’s not an issue, but just more dates to remember to file the extensions.
Hi Saurabh,
I got an RFE in my H1 extension with company X, (in the mean time) I am planning to do a H1 transfer through another company(Y) , Will my transfer with company Y be affected in anyway because my previous extension with company (X) is still in RFE – Will USCIS track all our previous VISA applications.
Thanks.
Ganesh,
It should not be impacted as you have been maintaining legal status in US (by getting paid regularly) and your I-94 has not expired.
Thanks Saurabh for the reply, Few more things to add is – My I94 has expired and i am currently in the 240 days period where I have filed for extension from company X and about to reply for the RFE. Now, can i try filing H1 transfer with another company (Y) .
Ganesh,
As your current I-94 has expired, you can still file H-1 transfer to Y, but it will not be approved w/ I-94. It will be approved w/ consular processing i.e. you will have to go out of US and enter on stamped H-1 visa.
Hi
I have a question on H1B transfer. Could you please help me?
I am currently on H1B for company A. I have got an offer from Company B and want to get my H1B transferred to company B. If the lawyer files H1B transfer in regular processing and NOT premium, then how much time does it generally take to get the receipt of Documents from USCIS? and till my H1B transfer comes through can I still work for Company B?
Neha,
Usually it may take 1-2 weeks to receive the paper copy of the receipt notice (aka 797C). You can continue to work for A as long as A’s petition is valid even after the transfer gets approved. You can also start to work for B once your transfer petition is received by USCIS until the expiration of B’s petition or actual transfer denial date (whichever is earlier).
So suppose lawyer submits H1b transfer case after completing the LCA formalities, it would take 1-2 weeks to get approval, right?
But when will i receive the receipt number to track the status online?
Once I get that number, can I work for employer B? Even though my H1 transfer process is not yet complete?
Neha,
The employer/attorney will receive the receipt within 1-2 weeks, and they can they scan and send a copy to you on the same day itself. You can start working for B on the day transfer petition is received by USCIS i.e. as soon as you can confirm that it has reached USCIS (through FexEx tracking etc).
Hi Saurabh,
Employer filed petition last friday and havent received the receipt notification yet. Could you please let me know how long will it take for this normally?
Kiran,
It may take up to 1-2 weeks to receive the paper receipt notice (aka 797C). Was it filed w/ premium processing?
Yes. It was filed under premium processing. I believe the 15 calendar days calculation is based on petition filing date which is last friday and not the receipt date. Please let me know.
Kiran,
It’s based on the date USCIS received the petition and acknowledged the same by generating the receipt. Because of postal delays there can be gap b/w filing date and receipt issuance date, and so it doesn’t make sense for it to start from filing date.
My Wife H1 is approved & Stamped also.As of now it is not sure when she will travel with the same company. I am going to US on H1 next month.
Now suppose she comes to US on dependent H4 Visa
1) Will her existing H1 Visa will be cancelled. what will happen to the approved petition that is valid till March 2014
2) If she finds an employer in US when she is in H1 B visa ,how complicate is the transfer process.
3) If transfer is possible approx how much time it takes.
4) Applying for tranfer of H1b is simpler being in India or in US
Adding onw more query
If she come to US on H4 and then we try to find an employer what would be the possibility of conversio.
Just to inform you that my wife has not travelled at all on the stamped visa. Her visa was stamped in Nov-2011
1. If she goes for H-4 stamping, then chances are that her visa stamp may get canceled. However, in future, any employer can file a cap-exempt petition for her (while she is in US or she is out of US).
2. The new employer will have to file a cap-exempt petition for her. The process is just like any H-1 petition and the chances of success will depend upon her profile, employer credentials, her legal status and offered position.
3. Under premium processing its 15 calendar days, otherwise it may take 2-6 months. If RFE is issued then it can be delayed futher
4. In US as then you have access to more companies, and can do more background checks.
As per your statement
The new employer will have to file a cap-exempt petition for her. having said that when she comes to US and finds the employes this process will start. But her H1B petition which was initially approved is still valid because in india at that time of H4 stamping only he stamping visa was cancelled.
Query
1) Can she use this approved petition and apply for COS from h4 to h1 when she is in US
2) If yes how much time this takes and complication
3)Want to confirm again that at the time of H4 stamping when her H1 B Visa in passport is cancelled what happend to the status of her Approved petition. ??
Thanks alot Saurabh for your valuable time and information .
Cheers
Rupesh
Rupesh Jha,
1. Yes, she can
2. Under premium processing its 15 calendar days, otherwise it may take 2-6 months. If RFE is issued then it can be delayed further
3. Her petition would remain valid and can be used either by the same employer or by another employer (cap-exempt aka H-1 transfer). Once the visa stamped is canceled she will have to go for H-1 stamping again if she plans to enter US on H-1 visa (COS doesn’t require one to immediately go for visa stamping)
Hi Saurabh,
Thank you for the prompt response on my previous query. I am glad i found your website which contains answers to most of my visa related queries.
i have initiated h4 for my spouse. i am yet to get the stamping done though.. which we are planning in 2-3 weeks time.
now, my spouse’s company would be initiating H1B for him, in the new quota this april.
My question is, if i get his H4 visa stamped by march, will there be any prblems in the new H1 that is being applied by his company? Or would it be wise to cancel the h4 processing right now? Since all the process is complete for h4 and only stamping is pending, i dunno if i can cancel it right now.. please guide me.
The spouse is outside of US at the moment, right?
Will your spouse enter US on H-4 visa even if the H-1 gets approved? If no, then he should wait to see his H-1 outcome and then go for H-4 stamping as a backup. If he needs to enter US ASAP on H-4, then it’s better to go for H-4 now and H-1 later. The answer would depend upon what your choice is for the travel in various scenarios.
Outside usa at the moment. Travel might happen to usa on h4 sometime between april – june. ( leisure trip for about a month & then go back to india, get h1b stamped, come back to usa for work) I believe the new H1 that would be applied, will be approved sometime in sep.
i just want to make sure that having an h4 stamped already wont create problems when he would go for the h1 stamping at the consulate. any thoughts on this?
Having H-4 visa stamped will not impact future H-1 stamping as long as the spouse maintains legal status during the H-4 trip to US. Your payslips may be required to show that the legal status was maintained during H-4 visit.
HI Saurabh,
If I got my h1b approved in april 2012, I dont want to get to india but start working from Oct 1st 2012 staying back in USA. The reason I dont want to go is that stamping is not gauranteed. Can I just start working and get my family in December 2012 without stamping of h1b in my passport. Is that possible. We can provide paystubs if necessary that we are working here and salary is being paid. Would that be sufficient??
H-1 can only be approved for maximum 6 months in future. So if filed in April, it can be approved for Oct but not for Dec (which is 8 months out). In addition, to continue to stay in US, you will have to file for B-1 extensions until Oct 2012, which may or may not get approved depending upon USCIS’s review. Also, to avoid stamping, H-1 needs to be approved w/ COS. If that gets approved then you can start working from Oct 2012 (or whatever the start date is) and not go for stamping.
Hi Saurabh,
How are you doing? I am in US finally now and got permission to stay for 6 months ie until JULY 30th on B1 visa . My company looking at my skills wants to apply for h1b in april 1st 2012 in premium processing.
Please help me with this situation. Lets say I get my h1b approved in april-may in Premium processing, Can I stay in USA on h1b status after JULY 30th (ie B1 visa expiry). Please help me out with this as I can plan accordingly.
You will have to check w/ your lawyer about it to be sure, but in my opinion you cannot stay like that. Reason being your current I-94 is expiring on July 30, while H-1 I-94 will not commence until Oct 1. So there will be a gap in continuity for 2 months. If that is the case, then you will have to apply for B-1 extension which would allow you to continue staying while you wait for H-1 to get started.
Hi Saurabh,
Thanks for the reply. Saurabh, if the h1b is approved, is it not that the USCIS will issue a new I-94 along with it for the h1b tenure. Lets say new h1b applied is given for 2 years, will not USCIS give me I-94 valid for that 2 years. If thats the case, I can stay isnt it even though B1 visa expires in JULY 30th 2012
If USCIS issues the I-94 it will be valid from Oct 2012 to Oct 2014 as Oct is the earliest start date for H-1. Your B-1 I-94 will expire in July 2012. So there is a gap b/w July and Oct, which you need to take care of by filing B-1 extension.
Saurabh, U r doing a great job. My question is slightly different than the others. My wife is on L1A visa and it is expiring in June 2012. Here company will be applying for an extension. However, we r expecting our 2nd child and the due date is June 9th. Her visa expires on June 12th. My concern is, if her visa extension gets denied, what are our options? We do not intend to overstay, but I guess we would need atleast 3 months to stabilize with the new born and then we will head back to India. Is there any way we can appeal to USCIS to grant us some extension? Since she will be in her 3rd trimester soon , I dont think it is safe to fly back to India now anticipating a possible extension denial. Pls let us know the best course of action.
Thanks
Raghu
If it gets denied, then you can ask for COS to B-1/2 and state your concern to them. I am sure they would grant you temporary stay on B-1/2 until the newborn becomes stable enough for travel.
Thanks Saurabh.That helps a lot.
Hi,
I got an offer from a Company X and my H1 got approved. My H1B stamping was done at Mumbai consulate on Dec 30 2011. Now my current company Y agreed to send me to US and ready for H1B transfer. I do not want to join Company X.
My question is:
1. Is there any way to apply/transfer H1B visa from X to Y without travelling to US and working for X?
2. Which will be a better option? L1 or new H1B petition?
3. Since I am already counted against the cap, do I still have to wait for quota to open in April if I want to apply for fresh H1B?
Thanks.
1. Yes. You will need employment documents from Y and copy of approved 797 from X (you are under scenario 1)
2. First question is whether you qualify for each visa category or not. Are you planning to work on employer proprietary skills/tools/applications/technology in US? If yes, then L-1 is the option, else H-1 is the option. There is also an article on this blog that compares the two, and you can access it from archives section.
3. You don’t need to be counted against the cap again. Your new petition will be cap-exempt.
Dear Saurabh,
Thanks for the prompt reply. I do come under the category: “L1B: Specialized knowledge employee” So which is a better option in this scenario: L1 or H1?
What will be the case if Company X cancels my H1B as I have declined their offer?
In that case, you should go for L-1, as H-1 is not for that kind of skill set and employer proprietary knowledge. If Y wants to offer a position based on more commonly available skill set, then H-1 can be filed.
If X cancels your H-1, you can still you can still use for H-1 transfer in future as long as you have a copy of approved 797.
Thanks Saurabh,
My last question is:
If I apply for H1 and the petition gets approved, then Do I have to go for stamping again? OR I can travel with H1 stamping of X and i797 approval of Y? Me and my wife both have H1/H4 stamped with X.
Thanks again for your prompt reponses.
No stamping is required as long as X’s visa stamp is still valid. You can travel using current stamp and Y’s approved petition.
Dear Saurabh,
My current employer Y is filing for Blanket L1 and I would have to appear for the visa interview this month. I have 3 questions:
1. As I already have H1B stamped, will it not interfere with my L1B visa interview? VO may ask why did you not join the employer X?
2. Will my H1B be cancelled if L1B gets approved?
3. What will happen to H1B if L1B is not approved?
Thanks
Manoj,
1. Yes, you can be asked why you want to go for L-1 visa when you have H-1 visa stamped.
2. When you go for L-1 stamping, there is a possibility that they would cancel H-1 visa stamp w/o prejudice.
3. If L-1 is rejected, they shouldn’t cancel H-1 visa stamp, but it’s ultimately up to the VO.
I was working company A in USA and came to India for vacation and visa stamping.
Initially Visa got refused under 221g but after 3 months visa got issued for company A.
During course of 3 months started looking for another jobs from India and got the job offer from Company B and Visa issued for Company ( While still in India)
Now if Company B applies visa transfer and sends approval notice to me in India.
Can I travel back to US with Company A visa stamp and Company B H-1B petition approval?
Or
Do need to go again for visa stamping with new petition of company B?
You don’t need to go for visa stamping as long as the current visa stamp is still valid and has not expired. You can travel to US on B’s petition and current visa stamp.
Hi,
Sub: Is new I129 required for change in LCA.
I have a valid visa approved for location x, but i have to work in location y. My company has initated a new LCA for the chnage in location. The New LCA is certified after posting.
My querry is:
1. Can I travel with certifed LCA alone with all my previous approved documents(I129, I797)?
2. Do i need to get a new I129 for the chnage in location?
Kindly guide me on the same.
Thanks in advance.
Off late, USCIS and consulate have been asking for I-129 amendment when a new LCA is certified. You can check w/ your attorney about the same. I don’t know what’s the situation at PoE.
Hi Saurabh,
I am working on H1 from a company in India. My VISA was processed for Texas but by the time my VISA came that requirement got closed. After, that I got an offer from another company based in IL.
Then, my company in India, applied for LCA as I am moving to different state. After reaching here, my HR in India asked to send the I94 to amend/update the petition.
In this, while this amend/update is in progress, shall go for a H1B transfer? Or can I transfer my H1B with old petition+LCA in hand.
Please advice.
Thanks
Kannan
You can go for H-1 transfer is you have copy of current 797 and payslips and W2 from current employer. LCA and I-129 are usually not required when going for transfer. You will also have to submit a copy of your current I-94.
Is your original I-94 submitted to employer/USCIS?
Hi Saurabh,
thanks for the immediate reply.
my original I94 is with me only, they only took a photo copy of it.
You mean to say the original 797 which has Texas client address is sufficient along with original I94? How do I get W2 from the employer?
Thanks
Kannan
Yes, for H-1 transfer you need 797, copy of I-94, payslips and W2 from the old employer.
Every employer is required to send W2 to their employees by Jan 31 of every year. Have you not received W2 for 2011 yet? Ask your employer for it as it will be required to file taxes for 2011.
Hi Saurabh,
I started working on H1 from Jan 5th, 2012. I am planning to transfer my VISA in April’12. My HR in India told, my petition will be amended with the LCA and will receive a new petition. Now, I am confused if I do not get the new petition by April, I have to go back to India which spoils all dreams of working in USA for longer time.
What should I do, if I do not receive my new petition by April. Do I get the W2 for these four months also?
Please advice me.
Thanks
Kannan
If you didn’t work in US on H-1 in 2011, then W2 for 2011 is not required. W2 for the 4 months of 2012 will be issued in Jan 2013, so you don’t need them now.
You can approach a different employer w/ your current 797. If you get the new 797 before April and haven’t filed for transfer yet, then you can apply w/ the new 797.
Hi,
My H1B transfer from company A in California to Company B in California has been approved.
I mean my I129 approved.
I had an agreement with company A in California that I will not join the client for Company A in any Kind i.e. not even through third Party. In the agreement I had my initials.
Now, I have joined company B and they have put me for the same Client. I have received a Notice from Company A for breach. So, will it impact me anyway legally.
Thanks,
Sanjay Jha
Non-compete agreements are not valid in CA. So even though you have signed it, your employer cannot enforce it.
However, there are certain exception to this. Talk to a good lawyer immediately to take get out of it.
Thanks Saurav. It Helps.
Is the other state Law enforceable to me if I am physically located in CA and working in CA since last 2 years. Can the former employer file the case in some other State against me even though I never went out of CA but the former employer has an office in some other State Say IL.
Thanks ,
Sanjay
The law is pretty clear when both you and employer are in CA. However, if the employer is in a different state, then I don’t know how that would work. My guess is that it won’t be enforceable as you are working in CA, but check w/ a lawyer about it.
Saurabh,
I have been working in H1B for 2.5 years in one company. Now I got an offer from new company in the same city. New company attorney told that they are going to file H1 Transfer without requesting the formal wage determination from DOL. They say DOL is taking at least 60 days to process prevailing wage requests.
Are LCA and prevailing wage request same?
Is it valid to file H1 Transfer without the prevailing wage request? Is there a chance that my H1 Transfer may denied because of this?
Thanks
JK
For the transfer, LCA needs to be certified. If the company already has a certified LCA which they can use, then it’s ok to use that as long as it was for similar role and same location.
Not sure if I was able to give you the answer you were looking for.
Thanks Saurabh.
Saurabh,
My visa got expired on Sep 2010 and extended for until Sep 2013. My new company files H1 B transfer extension for upto march 2015. Today they filed the H1 extension. Is it legal if I travel to India when my H1B extension is in process?
Thanks
JK
JK,
There are 2 parts of a transfer + extension scenario – 797 extension and I-94 extension. If you leave US while it is pending, then they will continue to process 797 extension, but will abandon I-94 extension. If the new 797 arrives by the time you return to US, then you show it at PoE and get I-94 date until new 797 expiration date and work for new employer. If not, then you will have to use old 797 and I-94 based on old 797 and work for old employer.
When do you plan to start working for the new employer?
Thanks Saurabh.
I forgot to mention that my visa got already expired and got extended from here. If I go to India, I need to get stamping for either new or old employer.
New company filed extension two days back on regular processing and want me to join within 5 days. I requested them to go for premium processing. I guess I cannot work until my extension gets approved.
JK,
The new employer’s petition is H-1 transfer, and so you can work for them as soon as the petition is received by USCIS. When going for stamping, you will have to go through the employer for which you have all the required documents including approved petition. So if the new petition has approved, you can go w/ new employer, else you will have to go w/ old employer.
Hi,
I just initiated a H1B transfer with my new company.
And they told me that I can start working before it’s fully approved.
So my question is what kind of info I need in order to fill out I9 on the first day considering the transfer is still in pending status?
Thank you very much for you answer!!
Jen
You can submit a copy of your old approved 797, and copy of H-1 transfer receipt (797C) to show that you have valid employment authorization.
Hello,
I have H1B through company A. And came for vacation to India and now I want to transfer my H1B to company B. But I am scared if company A has revoked it. Is there any way to know if my H1B has been revoked or not? Moreover if they did, how many days of grace period I have to transfer after that. I have heard 14 days but I have not seen any written proof of it.
Please let me know asap.
Thank you so much
What’s the online status displayed when you check your receipt number? Also, what’s the Last Updated Date on the online status? That should give an indication on whether your petition has been revoked or not.
In case it has been revoked, another employer can still file cap-exempt petition for you on the basis of the previously approved petition. You would need copy of old 797, most recent paychecks for your H-1 work in US and W2s, along w/ other usual documents.
Thank you for a quick reply. You mean the one at USCIS website. It says the following.
“On July 5, 2011, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice. If you move before you receive the notice, call customer service at 1-800-375-5283.”
So, it means it’s still current?
Actually I am having issues with my current employer and somehow she got to know that I have been applying for jobs elsewhere which I started after coming to India 2 weeks back. I started because I got 221(g) and when they asked for her ITR, she refused to provide it to me. And she emailed me that she accepts my resignation, but I have never applied for one. I don’t know if this affects the H1B status. According to her, I am out of the job. But I have never asked for relieving me or never applied for resignation.
The new employer wants me to pay for H1B transfer as they have never met me personally and I understand their part. I want to get it done in premium processing. I hope that should not be a problem.
Moreover, I just got to know from an Indian employer in US, that if I will withdraw my visa stamping application (as my passport is still with the US Embassy), they will withdraw my H1B also and then I will have to file a new H1B. I didn’t really understand what all he was trying to say. But is this the case?
Let me know please and thank you so much for such a wonderful site.
God Bless you.
From the message it looks to be still valid. However, it’s just an indication and your employer may still have sent the letter to USCIS to withdraw.
IMO, here is what you should do:
– withdraw your 221g case to get back your passport and 797 (if that has also been submitted)
– ask a new employer to file new H-1 petition for you. Although I am saying new petition, but this petition will not be subject to cap. So it’s H-1 transfer and can be done anytime. This holds true even after you have withdrawn your case from the consulate
– once the new employer’s petition is approved, re-appear for visa stamping. Over here, try to file through an employer who is credible and has better chances of getting the petition and visa stamp approved.
Hopefully everything will go fine, and you will be able to return to US.
Also, legally an employer is supposed to pay for the H-1 fees (PP fees can be paid either by employer or employee). Be aware of this even if you agree to take care of the charges yourself.
Okay. Will withdraw the application today itself. How much time does it take to get the passport though?
My new employer wants me to pay 2500 (attorney fee) + 1250 (PP). That’s what I got to know from her. Moreover may be I am in a need right now, so they are asking for it.
I don’t know how much time it will take to withdraw. You can check w/ VFS.
If the new employer is asking just for the attorney fees and PP fees, then it is legally ok. However, the employer should not ask for rest of the H-1 fees.
Good luck!
All right. Thank you so much for all this help.
I will check with vfs.
I really appreciate your time and help. I was in such a mess but I guess things can work out now. All thanks to you Saurabh.
🙂
sorry to bother you this much but something stupid just happened. When I appeared for my interview on 9th jan, I just got a pink slip and I was required to submit very general documents like resume and statement of purpose. Then after 2 days I received an email stating that I have to submit more documents like LCA copy, ITR and such stuff. Now I am checking the status of my application on the website of US embassy and it says “We were not able to identify Case #”. I have rechecked it 3 – 4 times now. They didn’t give me any deadline to submit the documents. Did they close my case? Can this happen?
Pink slip is usually issued when your work and industry is there on the TAL (technology alert list). Did you go to Delhi? My wife went for her H-1 interview in Delhi and was issued 221g as she is working in pharma (hers is still pending). So I know a little bit about the pink slip 🙂
For some technical error, the site is continuing to show that status even when the case number is correct. There is no deadline to submit the documents, but they will not start the processing unless all the documents are received. If you email VFS about your case, they will tell you that it’s under process and not provide any more details. Checking through your passport number on VFS site will also not give any meaningful information. In other words, it’s one big black hole w/ no insight on what’s happening and how long it would take.
Yes I appeared in Delhi. Lets see how it goes now.
But thank you so much for your help.
Really needed it. 🙂
Hello,
– I was working in Company A untill Dec 20, 2011 and then filed H1b transfer to Company B and started work with them on Jan 3.
– Soon 3 weeks after joining I now have offer from company C and they want me to join immidietely. I have Company B’s I-797 receipt notice from USCSIS, but have not received the Approved I-797 yet.
I have the following questions…
1) Can the new Company C file H1 transfer right now? What’s the process for it? I mean using Company A’s documents or using Company B’s? And what’re the documents needed in either case?
2) If yes, then great! But if Not, then should I file for H1b premium porocessing to receive Company B’s approval I-797 asap? Hopefully then company C will be able to file H1.
Kindly help!
Thanks,
Karan.
Yes they can do that. They would need approval notice from A, 797C from B and payslips from A and B covering last 2-3 months
Oh good! What is a ‘797C’?
797C = Company B’s I-797 receipt notice from USCIS, which you already have.
Thanks a lot!