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 have a question – I am in the US and my current I94 is valid till Jan 2013. I am planning to initiate H1 extension with the current employer (A) as there’s no much time left. However, I am also looking out for a better opportunity in the market and am open for a switch. Will there be any issues with my H1 transfer in case I switch to another employer (B) during this time (i.e. after H1 extension applied in A and before I94 expiry).
Also, what all things do I need to keep in mind while taking any such decisions.
As always, I appreciate your suggestion on this.
Thanks, RP
Hi Saurabh, Anil,
Can anyone of you please advise on my scenario?
TIA,
RP
RP,
Yes,You can do H1 extension and then H1 transfer. Wouln’t be a problem. Anyway H1 extension is given per yr basis, these days. You have one whole yr to do switch to another company.
Anil
Dear Anil,
Following are my activities in last 6 months:
Dec 2011 – L1A to H1B COS approved valid till 12/2014 from Emp A to Emp B
June 2012 – H1B Transfer approved from Emp B to Emp C.
Emp B has cancelled the H1 and its now valid with Emp C.
I quit Emp B on 1st week of July and has all his latest payslips [he paid till the end].
Now, can i quit Emp C [my current H1 holder] and find another Emp D.
I dont have 3 months pay stubs from Emp C but have no out of status as I was paid till the end by Emp B.
Will USCIS approve my transfer even though I dont have any single pay stub from my current employer?
or should I wait for 3 pay stubs from my current employer and then try for transfer.
Thanks,
RR
RR,
Paystubs are the only way for USCIS to check your legal employment status including tax payments. Since you are now with Emp C, its better to get transferred with paystubs.
HTH,
Anil
Hi Saurabh,
If I want to apply for H1 transfer and i have following questions.
Please reply to the below given questions.
Background is that I have 7 years of software experience and 10 months of call centre experience in India and am currently in US.
My current company while applying for H1 B in my CV put the 7 years of IT experience and 10 months of call centre experience and gave my call centre experience certificate copy while applying.
Question1: If the new employer want to apply for H1 B transfer, is it required that I should mention the call centre experience as it is not relevant to my current job or even the prior job though my current employer have put that experience in the CV and gave my experience certificate while filing for H1 B. I do not want to put my call centre experience for applying for H1 transfer because I do not have the original experience certificate. (I know UCIS do not ask for originals but want to apply without the call centre experience). Can I apply for H1 B transfer without putting that experience now or what is advisable from you.
Question 2: I have a L1 blanket rejection before applying for H1 B. My current H1 B have got approved, but I do not have the rejection slip or case number for L1 B blanket. What my current employer did was put the Blanket Petition Number(common to lots of employee) while applying for H1B. Will my new employer while applying for H1B can use the same blanket number as I do not have rejection slip for L1 B blanket petition hence do not know whether there is any individual case number for L1B blanket petition. I assume there is no individual case number. Please confirm.
Question 3: If your recent salary slips, say one have one week of LOP and other has one week of leave, does this affect the H1 B transfer process in any ways.
Question 4: If you apply for H1 transfer what is the probability of getting the new H1 B VISA period less than the current H1B VISA period. Does it happens that the new H1 transfer period can be less than the current. Say if current H1B was for 2 years 10 months then the new H1 B will be less than this if still 2years are left for the current H1 B.
Regards,
Yuvraj
Hi,
Please reply to the above questions.
Regards,
Yuvraj
Yuvraaj,
1. If you do not show that experience, then it will show up as a gap. You have to decide whether to show a gap or a non-relevant experience.
2. It should not be an issue
3. No
4. It is possible and would depend upon the submitted documents and USCIS’s review.
Thank you Saurabh.
Just one input for question 1. If I do not show the call centre experience it is not going to hamper the H1 transfer process in anyways as it was there for the current H1 which I have. Just wanted to confirm that it was old experience nearly seven years ago and is not relevant hence do not want to put it. Please let me know not putting it will not have any impact as it was there while filing the current H1 and i do not want to put it for H1 transfer.
Regards,
Yuvraj
Hi Saurabh,
Please confirm that not putting the call centre experince for H1 transfer should not impact the process if i just put my software experience and leave the call centre experience. Does the gap between the passing of the degree and joining of the job in software if leave the call centre experience has any negative impact in H1 transfer. Also If I do not have my original experience certificate and just have a photocopy for call centre experience is that safe in the scenario when i do not possess the originals. Please confirm both the answers.
Regards,
Yuvraj
Yuvraj,
I don’t see a big issue if not putting it up, especially if it is not relevant to your current work. Talk to your attorney as well to be sure about it.
Hi Saurabh,
I previously worked for a company and filed a H1b petition in year 2010. This year, I transferred to H4 and moved to a new city. My question is, if I’m looking for a new job (similar industry, similar position) now, do I need to apply for a new H1b using 2012 petition? Or my petition for 2010 can still work, and I just need a transfer?
Thank you!
Flora,
Yes, you can use your 2010 petition for H4 to H1 CoS and you can work immediately, if applying for new H1B petition, you can work only from october 1st.
HTH,
Anil
Hi Anil/Saurabh,
How are you doing?
My Company has filed for H1B amendment through PP and I verified the status on USICS
site and displayed a message like my I129 is approved and mailed to me.
Here my question is… Shall I go for travel date confirm or else is anything work is required, ( Already visa stamped).
Tnx
RP
RP,
Did you get the H1B amendment Petition papers ? If you got, you can travel with that papers.
HTH,
Anil
Hi Anil
I got amendment papers. so I can travel now…. as already visa stamped for me and my dependants.
Thnaks for your quick response.
Tnx
RP
RP,
Yes, you can. All the Best.
Anil
Thanks Anil…
Hi Saurab ,
I am working on OPT status in a semiconductor company. The company has applied for my H1-B visa process. Recently I got message from the company’s attorney that my H1-B visa has been approved. My status changes from OPT to H1-B from October 10 ‘2012.
There are two reasons why I hate my curent job –
1. I am being underpayed. All my friends in Texas are getting paid atleast $10K more.
2. I hate my current job responsibilities.
If I wish to change to another nanotech./ semiconductor company –
Q1) When is the right time for the new employer to apply for the H1-B transfer petition?
Q2) Do I need to inform my current company/ attorney before the H1-B transfer petition is applied ?
I have the same scenario please let me know if you find out the answer. thanks.
Tapsee,
1. They can apply now w/ start date of Oct 1.
2. You don’t need to inform your current employer about the new H-1.
Hi,
I’m from India
I got my H1b stamped in Jan 2012 valid till Oct’14 with employer – A
while working in US In May2012 my H1b transferred to employer – B valid till May’2015 with new approved I797.I now working for employer-B since June2012
I’m planning to visit India this year in Sept’2012.
Do I need to get my H1b restamped in India ? as it contains name of previous employer A?
Is there any other formalities / documentation which needs to be taken care ?
Thanks for your help
Ramesh,
As your previous visa stamp is valid, you are not required to go for another visa stamping. You can use the old visa stamp and new petition to re-enter US.
Hi Saurabh,
Thanks alot for providing such useful information.
I was in my L1 Visa for Company A. Company A applied for COS to H1 when my L1 was about to expire. My COS from L1 to H1 with Company A is approved from April 2012.
Company B gave me a good offer and I joined Company B in June 2012. Company B filed by H1B Transfer and I hvae the receipt number.
In case my H1B Transfer is denied, can I do the following:
1. My Spouse is also in H1B. And I have H4 petition valid till 2013. Can I get a change of status from H1B to H4 if my H1B transfer is denied?
2. Can I try employment with a new employer C? Can new employer C file H1B Transfer after I come to know that my H1B Transfer to Company B is denied?
3. Do I have any other options?
Thank you
Ashwin,
1. Yes
2. Yes
3. Go back to A (if they are willing to hire you).
All these should be done ASAP after B’s petition is denied.
Saurabh / Kumar
Question: I am currently on H1 with Company A (was in H4- transfered H1 with COS).Now I have offer from 2 comapnies. Company B & C are willing to transfer H1 to them. Company B is almost done with paper works and they arefiling this week. Company C just got selected and they started my H1 transfer
1) If both transfer fails will I be legal to work with old company A
2)If Company B gets RFE and CompanyC is through can I work with Company C
3) What will be the chance if both gets approved in a gap of 1 week? Is the latest one is valid?
Pleaselet me know. Thanks!
Ashish,
1. Yes
2. Yes, you can work for C or A. You can also work for B on the basis of transfer receipt, but you will carry the risk of B’s petition getting denied.
3. You work for either A, B or C in this case. You can work for any employer who has an approved petition for you (not necessary to work for the last approved petition).
Hi Saurabh,
My Company is applied for H1B amendment through premium process, as per your previous responces that it takes 2 calender weeks for H1B amendment through PP. but my company is saying that following … could you plz clarify me whether they are saying correct or not?
1. H1B amendment throguh PP takes 2 weeks.
2. Before amendment case should be approve and it takes 4 weeks( as my work location is changed)
Thanks
RP
RP,
I think what they are saying is that first a new LCA needs to be applied and then H-1 amendment. The former will take 2-3 weeks, and then H-1 amendment would take 2 weeks w/ PP. This sounds correct time frame.
Hi Saurabh,
I used to work in US since Sep 2006- initially on L1 and since Oct 2007 am on my H1. Meanwhile I was out of US in India from Sep 2008 to Aug 2009 and finally I came to for my second stamping in Aug 2011 which is now rejected (Employer Employee relationship issue). I have my I797 until Sep 2012. Can you please advise me which would be the best option?
A. Shall I go for a H1 transfer before Sep 2012. If so can a new company apply for my H1 without a vendor letter or client letter?
B. Go for a fresh H1 in the next year Cap?
C. Can I go for H1 Extension? Do I still have any yrs left on my 6 yr H1 term?
Please advise.
Hi Anil/Saurabh,
Can you please advise me on my case. Below are my questions.
I used to work in US since Sep 2006- initially on L1 and since Oct 2007 am on my H1( got it in the cap of fiscal yr 2007-2008). Meanwhile I was out of US in India from Sep 2008 to Aug 2009 and finally I came to India again for my second stamping in Aug 2011 which is now rejected (Employer Employee relationship issue). I have my I797 until Sep 2012. Can you please advise me which would be the best option?
A. Shall I go for a H1 transfer before Sep 2012. If so can a new company apply for my H1 without a vendor letter or client letter?
B. Go for a fresh H1 in the next year Cap?
C. Can I go for H1 Extension? Do I still have any yrs left on my 6 yr H1 term? As per my IN and OUT dates to US I stayed in US for a period of 4 yrs including L1 and H1. So am I still eligible for the remaining 2 or 3 yrs excluding 1yr of L1.
Please advise. Your help would be highly appreciated.
Sweta,
L1 time used — sep 2006 to sep2007 — 13 months approx.
H1 time used — oct 2007 to aug 2008 , sep 2009 to july 2011 — 34 months approx.
Total time can be used in H1 or L1 each is 72 months.
A. you can do it not only before sep 2012, even after sep 2012.
No, employee employer relationship is a must these days.
The above depends on the type of MNC you are recruited for.
If service based ones, client letter is a must, they can’t file or go for stamping without it.
If product based ones, you will be recruited for in-house projects, so no need of client specific letter.
B. Yes. you can do that. you get fresh 6 yrs .
C. considering H1 extension, yes it is. You can use your remaining time.
HTH,
Anil
Hi Saurabh,
I have a general query regarding the H1B petitions. That is, When does the USCIS begin to work on the petitions for the new fiscal year? Whether it is after having finished with all the previous/preceding year’s petitions OR is it immediately on receipt of the new fiscal year’s petition (from 2nd of April for the current fiscal year) OR is it after the 1st of October?
Thanks in advance.
AJ,
USCIS will begin the work for petitions falling for the fiscal year from April onwards. Fiscal year starts from Oct to Sep. Eg., for FY13 it is from oct’12 to sep’13.
There are many times, the H1B petitions are not time bound to be finished before oct, it will cross the october and can go upto sep of that fiscal year due to RFEs. But they are supposed to finish(approved/denial) by sep of that fiscal year.
So at any point in time, USCIS will be working on previous and current fiscal years petitions.
HTH,
Anil
Thanks a million dear Anil.
This would mean that USCIS is currently working on not only FY 2012 petitions on which the decision(approval/rejection) has not been reached but they have also started the FY 2013 petitions (for which the candidates can only start working in the US on/after 1st october 2012 in H1B visa category).
Could you please also clarify if the USCIS will start giving their approvals on FY 2013 petitions as well before the project start date (1 st October 2012)? If the answer to this is yes then how soon can a candidate with approved petition (for FY 2013) go and appear for Visa interview?
Cheers mate.
AJ,
Not necessarily, if filed in PP, then the response time is 15 calendar days, if filed in Regular processing, then it varies from 2 months to 6 months.
And there is no rules on the time that USCIS should adhere for regular processing, the time they approve can fall after project start date also.
For Visa stamping, one should appear not more than 90 days before (July onwards) for the fiscal year employment date (i.e., oct 1st), even if it is approved before July.
HTH,
Anil
Hi Anil/Saurabh,
Your responses have always been very useful.Keep up the good work! I just have few queries and need your expert advice.
Background: I along with my family had been to US last year through Company A and returned. We were on H1b and H4 visa resp. and these visas are valid through Feb’2014. Now recently Company B had filed a new H1b petition for me on PP which got approved last monday 18th June’12 and I’ll be travelling again along with family for company B soon.
Queries:
1. Is there anything(transfer/company name change) needs to be done for my family’s H4 visa(spouse & minor daughter)? Note: They have H4 valid thru Feb’14 which has company A’s name on it.
2. If the answer of Q1 is yes, what is the process and how long will does it typically takes (is there a PP option there as well)?
3. Whether I and my family need to again go for new visa stamping for Company B or we can travel with existing Company A’s visa(valid) along with copy of new approval noticed for Company B?
Your help in this would be highly appreciated.
Thanks!
Suraj,
1) Typically, the name of the petitioner is identified using the name on the visa stamp.
For H4, since it is dependent, it holds the same petitioner name as H1.
2) Since it is a dependent visa, only Consulate interview slot needed to get visa stamped.
3) It totally depends on the employer, many employers mandate to have visa stamped on their name to match the approved petition (it is mandate policy in big MNCs).
Need to check with the employer immigration attorney, if they require, then you need to get stamped.
When you go for Company B’s visa stamping, your dependents will get Company B’s visa stamping as well.
HTH,
Anil
Hi Sourabh,
I had received RFE in the month of Feb-12 and the immigration team had submitted the relevant documents in Mar-12. When i chech the status on the usics websiste, i see only this status, we received your petition on mar—–, and you will be notifiied once the decission in made within 60 days of your application.
I calculated the 60 days from the date of application, and it has been more than a week, the site is showing the same status. Please advise.
My petition number starts with EAC.
Regards,
Sidd D.
Sidd,
Upgrade it to PP, then USCIS will respond back in 15 calendar days for RFE.
In Regular processing, there is no time limit that USCIS must adhere. The minimum time is 60 days. It can go more than that.
Hi,
I had H1b visa from ’07 to 2010, and I worked upto Feb 2010. I came back to India then and working here. I don’t know whether it has been revoked or not. My current employer is ready to file H1b.
1) Can I use the old H1b approval to get it transfered to the current employer?
2) Can I come under cap-exempt?
3) If I dont come in cap-exempt, then my employer can file under Advance degree cap as I have Master’s from USA.
Thanks.
Kira,
1) Yes.
2) Yes.
3) Since you already have your old H1B petition, you come under cap-exempt and you can travel at anytime.
If you dont have to be considered under cap-exempt, then you have to file as new H1B and can work only from october of that Fiscal year.
BTW, you can check your H1B status here -> https://egov.uscis.gov/cris/Dashboard.do
HTH,
Anil
Hi Anil,
Thanks for your reply. I called the USCIS 1 (800) 375-5283, and executive said that H1-transfer is not possible as old petition was with different employer. New employer has to file the new petition(Executive didn’t understand the point of H1B cap whether I come under cap-exempt or not).
Where can I get the information on USCIS regarding the H1 transfer possible even old petition is expire?
Thanks for your time
Kira,
USCIS won’t be able to give that much information over phone calls.
You have to check with immigration attorney, since you are doing H1 transfer, check with the new employer’s attorney.
You can also check with well known immigration attorney firms, falling under paid services.
Kira,
The executive was right. Legally there is nothing like H-1 transfer. What happens is that the new employer files a brand new petition for you, but that petition is cap-exempt as you already have an approved petition from other employer (doesn’t matter if it has expired). People usually refer this as H-1 transfer, but USCIS doesn’t treat H-1 as ‘transferable’.
Does that clarify?
Hi Saurabh,
I am on H1 B with employer A working in U.S. and I came here through on-site Opportunity. My visa and I-94 are valid till 2013 Oct. My last working day here in U.S. is 29th June ( I’ll no longer be on US payroll after this date) and I am asked to return to India on 3oth June. My L.C.A has been filed with a new employer B on 21st June and it takes 10 days to get approved. If it gets approved by 5th July, would it be ok if I submit the resignation on the last working day i.e. 29th June? I understand that my visa will be out of status for few days if I do that. But, my question is that what is the maximum period that we can be out of status for H1? Is it legal? Please help me with this query. Thanks in advance.
Rajii,
LCA doesn’t mention, you are working for the new employer, H1B does.
Your new employer has to file H1B transfer after LCA certified and get the receipt.
Based on the receipt acknowledgement, you can work for new employer.
When your payroll stops, your H1B status is on hold.
You have grace period (out of status) of a week or 10 calendar days between your last payroll date and new H1b receipt date.
This grace period time may change for fiscal years by USCIS, check with immigration attorney for precise information.
HTH,
Anil
Hi Saurabh,
Your responses have always been very useful.Keep up the good work! I just have few queries and need your expert advice.
Background: I along with my family had been to US last year through Company A and returned. We were on H1b and H4 visa resp. and these visas are valid through Feb’2014. Now recently Company B had filed a new H1b petition for me on PP which got approved last monday 18th June’12 and I’ll be travelling again along with family for company B soon.
Queries:
1. Is there anything(transfer/company name change) needs to be done for my family’s H4 visa(spouse & minor daughter)? Note: They have H4 valid thru Feb’14 which has company A’s name on it.
2. If the answer of Q1 is yes, what is the process and how long will does it typically takes (is there a PP option there as well)?
3. Whether I and my family need to again go for new visa stamping for Company B or we can travel with existing Company A’s visa(valid) along with copy of new approval noticed for Company B?
Your help in this would be highly appreciated.
Thanks!
Suraj,
1. Nothing required
2. N/A
3. No new stamping required as long as your current visa stamps are valid and you have new approved H-1 petition.
Hi Saurabh,
I have approved H1-B Petition valid till Sept -2014. My current sponsor not willing to go ahead for stamping and I am stucked with approved petition now. Currently, I only have the Receipt Number (no hardcopies, no forms).
1) How can I use this Receipt Number to do H1B Transfer with new sponsor?
2) H1B Transfer advantage is only to avoid normal Cap cyle? Is my understanding correct?
3) Can my new sponsor apply fresh Petition, instead of transfer?
4) What could happen with petition, if my current employer removes the approved petition ? Can I still go for Transfer ?
Amit,
1) No. You need soft-copy of the approved petition.
2) Yes.
3) Yes.
4) Even if the approved petition is revoked, you can still apply for H1 transfer from outside of US considering you have the soft copy of approved petition.
HTH,
Anil
Amit,
Agree w/ Anil except for:
1. It is best to have copy of the approved petition. If not, you can still try w/ the receipt number and print-out of online status showing approval status.
Hi Saurabh,
Could you plz clarify below queries.
1. How long it takes for H1B amendment through PP. ? what is the process for it?
2. I and my dependents are stamped with Visa stamping. Now amendment is taking so is there any support documents required for dependents or else not required?
3. My petition is valid sept 2010 to sept 2013, after that shall I go for the re-stamping? As I comes under the same Cap or else need fresh petition through new Cap?
Tnx in advance for your precious time to answer my queries.
Reg.
RP
RP,
1. 15 calendar days. The employer needs to file the amendment along w/ new LCA and new I-129.
2. Nothing required for the dependents
3. It will not be subject to cap and would be cap-exempt.
Thanks lot Saurabh…
Hi
I am changing my current Employer in US for 1st time so got some doubt.
I received my receipt copy from new Employer and they said I am good to join ,Now I am processing my Exit process from the current Employer .
My question is Can I take 1 week Off before I join new Employer ??
Soumya Kanti Acharya,
That should be fine and reasonable as lot of people like to take a break before joining the new employer. You can double check w/ your new employer’s attorney as well.
Hi Saurabh,
While anyone transfers his/her H1B to a new employer, can they start working once they get the receipt number. Is this correct? and dont they have to wait till the petition gets approved? coz this is not just transfer right , it is going thru the same New H1B process from the scratch, except that they dont come under cap. isnt it?could you please clarify this to me if it is safe to join with the receipt number?
Thanks
Suhasini
Suhasini,
That is correct understanding. You can start working for the new employer as soon as the petition is received by USCIS (only if you are already in US on H-1). Thing to look out for is that in case your new petition gets denied, you will have to immediately go back to old employer or have an employer file another petition ASAP.
Hi Saurabh,
My case is getting complex now, you know as I mentioned before, company A filed H1B for me last year and I have obtained the visa stamp on Jan 3rd this year but I haven’t been to the US by far. Now company B will apply L1B for me for an internatioanl assignment. what should I do with my H1B? will it be cancelled by USCIS if I apply L1B? Appreciate your enlighten.
Thanks/David
David,
Only your H1B visa will be cancelled without prejudice,once you get L1B visa stamped. But you still hold valid H1 petition.
You can do H1 transfer when you are in US, by using your H1 petition.
David Jiang,
Agree w/ Anil’s comments.
Hi Anil and Saurabh,
Really appreciate your explaination. That is to say, only H1B visa stamp will be cancelled but it will not prejudice approved H1B petition(I797)? And if I do H1B transfer in the US, do I need to come back home country to get the H1B visa stamp again? Thanks really for prompt response, as I need to tell my decision to company B, go with L1B or no-go? Since probably I have to resign from company B who is sponsoring L1B and go with company A with existing H1B visa. I have no knowledge about if it is possible for me to be able to hold L1B and H1B at the same time, even though whether or not it is legal from USCIS.
Thanks/David
David,
Yes, there will be no impact on the approved H-1 797 petition. In case you do a H-1 transfer in US and also apply for COS (change of status from L-1 to H-1), then you can start working on H-1 from COS approval date. There is no need to immediately go for H-1 visa stamping in this case. Next time you travel outside of US, you will have to get H-1 visa stamped in order to return to US (this is assuming your previous H-1 visa stamp has been canceled).
Yes, there is also a possibility that the consulate will not cancel your H-1 visa stamp when appearing for L-1 visa interview. In this case you will have to 2 visa stamps in the passport. However, when you are inside US you will have only one visa status which will be determined by the visa you used to enter US.
Hi Saurabh,
Thanks for the answer, and H1B visa stamp will be expired on Dec 29th, at that time I will be living in the US with L1 and project assignment with L1 will be ended on Jun 2013, but I still have some time to conduct COS as my petition is expired on Sep 2014.
By the way, how long do I need to wait till I can get the green card with L1 or H1?
Thanks/David
David,
If the H-1 employer wants to hire you, then they can do just the COS by Sep 2014. After Sep 2014, they would have to COS + H-1 extension. If a different employer wants to hire you, then at any time they will have to do COS + H-1 transfer.
Processing time for GC depends upon your employment category (EB-2 vs EB-3) and the backlog for your country of birth.
Hi Saurabh,
Thank you very much for the answer.
Have a great day!
David
Hello Saurabh,
I have seen in many of the previous posts you have mentioned that H1 transfer can take place based on the EAC number. I have worked on h1b now since last year and a half and now a new employer is willing to file for my transfer and I do not have the I797 form with me. I have couple of questions :
1) Why do few people/forum mention it to be absolute essential to provide I797 ? Is to make sure the receipt number does actually belong to my petition? If yes then cross checking it from the I94 form should be suffice right ?
2) Will it take the same amount of time as it would have had I provided the I797 form ?
3) Will I or the new employer need to first get the duplicate I797 from USCIS or is it like we file for it and let USCIS dig the info ?
I’m basically trying to understand the process in case of transfer without I797.
Regards,
Akshay
Akshay,
1. Lot of potential employers like to see 797 copy to be sure about the approval and receipt number belonging to you. You are right that the same can be shown in a different way w/ I-94 and online status against that receipt number. Your new employer can submit the receipt number, copy of I-94 and printout of online status for that receipt number. They can also attach a letter stating that the old employer is not willing to share the 797 copy w/ you.
2. Yes
3. Check w/ attorney if they can file FOIA to get the duplicate. I am not sure if it would work or not, but worth the try
Thank you Saurabh,
The new employer did go ahead with the I-94, Print out of online status but he skipped the letter that you had mentioned. The H1 transfer got approved today morning.
Regards,
Akshay
Hi Saurabh,
I am currently working with employer ‘A’ and is on H1 b which is valid till dec 2013. I have got offer from employer ‘B’ and i have given all docs for transfer and they have filed in normal mode. I need to go back to india now as i have some family commitments.
My Questions are.
1) I can still enter in petition of Employer ‘A’ if my transfer is not approved. But what if my transfer gets approved when i’m in india ? Do i need to go for stamping ?
2) I heard that i can travel outside when my transfer is initiated and transfer will get approved with out a valid i 94. is that true ?
3) if Answer to Qn # 2 is ‘Yes’ , when will i get my new i 94 ? am i supposed to get a new one at POE ? Do my employer need to do something in this case ?
4) Are there any other risks if i travel outside of ‘US’ when my transfer is initiated ?
5) My new employer is saying that i need to go for stamping if i travel back to india even after my transfer is approved. I have VISA till dec 2013 and i dont understand why should i go for stamping. Do you see any other reason why employer is forcing for this ?
Vinod,
1. You can enter on A’s petition if you plan to work for them after returning to US. You don’t need to go for visa stamping as long as the previous visa stamp is still valid. So you can return on B’s approved petition and A’s visa stamp if it gets approved while you are outside of US, and B’s petition gets approved
2. Yes
3. You will get the new I-94 at PoE. Its date will be based on the petition shown there
4. No risks I can think of
5. Some employers prefer the visa stamp to belong to their company, but it is not required. So you will have to discuss this w/ your attorney and employer
Thanks a lot for your prompt response Saurabh..
As usual ur answers really helps us a lot. Wishing you and your site all the very best.
Hi saurab,
I am currently working for company A in India have got h1b stamped succesfully my question are
Situation1)If i find an US offer at Company B ,if he applies for petition but tells me to travel on existing comapny A-VISA.
Q1) Can i travel with existing visa ?
Q2) can company A cancel my VISA ?
q3)Does company A need my passport to proceed with cancelation or just he can intimate to USCIS to Cancel ?
q4)if Company A applies to cancel my VISA how long it takes ?
q5)If company B after petition approval , if he tells me to go for stamping , will my A-VISA be cancelled by VO ?
q6) Can i hold both petition and both VISA at same time ?
Sitauation2)
How do people find US Offer while they are staying in INDIA ? if there is any group can you please help me
Thanks
Jai
Jai,
1) Visa stamp and Visa status are different things, but for many MNCs, they wanted to hold both, some companies don’t care if visa stamp is for different company but petitioner is held by them. You have to check with your employer.
2)Yes, they can revoke only your petition not the stamp, stamping can be cancelled without prejudice only by VO, it happens only when you travel with same cause with different visas (consider B1 gets cancelled when you apply for L1 or H1)
3) No, he needs soft copy of your petition to cancel it, which i believe he would be having it in his database.
4) It takes one to two weeks. But USCIS, needs justification to revoke it, he has to mention “No project availability” or “Employee got resigned” or “Employee has done H1 transfer to another employer”
5)Yes, obviously. VO has to cancel your previous visa stamp, as it gets expired as soon as you did H1 transfer to another employer.
6) You can hold only one petition and one active VISA stamp to it.
situation 2), It is same as getting job in india, you can get thru contacts, job sites or career portals. It all depends on employer’s interest in you.
All the Best,
HTH,
Anil
Hi Anil..
Thanks for the answers ..just 1 point to reconfirm as conclusion
1)
My A-Company in India can only revoke/cancel my A-petition ,
but he cant cancel my H1B Visa in any circumstances ? AM I right ?
2)
Only while i go for B-VISA Stamping VO have the rights to cancel my A-VISA and give me fresh B-VISA ?
Thanks
Jai
Jai,
1) Yes, he cannot cancel your Visa, but when you travel you need a valid petition, you cannot travel with revoked petition.
One more thing is, after USCIS confirms revokion, he can request the consulate to cancel the visa, but generally this is very less. Consulate can ask you to send passport via courier to VFS to do it, but this is again very less cases i encountered. This is your choice, you can send or ignore it.
2) It is indeed, when you go for B-VISA, and when the B-VISA is stamped, it is well understood that A-VISA is cancelled.
Anil…
Great help ..thanks a lot very professionally answered
Thanks
Jay
Jai,
1. Legally, Yes
2, 3. Yes, they can cancel the visa by sending the passport to VO. In that case, VO will cancel the H-1 visa stamp w/o prejudice
4. The passport would be returned within few weeks
5. Yes, they might
6. That is also possible. It will be VO’s discretion whether to cancel A’s visa stamp or not when you appear for B’s visa stamping
Saurab,
great answers …so much doubts in mind …you people clear them in ease
Thanks
Jai
Dear Anil/ Saurabh,
Here’s my situation:
I’m currently working for Company A on L1 valid till May 2013.
Another company B has filed for H1 COS through PP on thursday, June 7th.
My current employer company A has also filed for regular H1 COS .
My ques are:
1. If both COS H1 by company A & B gets approved, can i pick one that I want to work with ?
2. If H1 COS filed by company B (PP) is denied, while H1 COS through company A is still in progress, can i legally stay in US and continue to work for company A on L1 (my current status).
3. If H1 COS through company B goes into RFE, how earliest do we have to respond with the asked documents or in other words, how long can i take to respond ?
Many thanks in anticipation.
– NG
1) Yes, both can file H1 for you. You have a choice to go with whom.
2) Yes you can stay in L1, but as soon as H1 CoS gets approved, your status will change to H1.
3) RFE should be responded with the date mentioned in the RFE query sent by USCIS.
Petitioner has to respond on or before that date.
I anticipated an issue here, consider as point 4) H1CoS for company B goes to RFE and Company A gets approved , where both filed at same time, then you have to go with Company A , i assume, no other choice i guess (saurabh correct me if i’m wrong).
Because at any time, you can maintain only one status, L1 to H1 has been approved to company A before Company B. And as soon as approved, you are in H1 status for company A.
HTH,
Anil
Thanks Anil – it helps a lot and thanks for explaining the 4th scenario too.
But a qq tho – wouldn’t the COS be applicable from Oct 1; so in that case I will have to start working with whichever’s employee’s petition is approved by Oct 1 or if both of them are approved by Oct 1, then I can choose one ?
NG,
Yes, for new H1, the employment start date can be on or after Oct 1st.
I have seen cases where there were three RFE queries for even a well-reputed MNC.
For addressing, it took 3-5 months totally, i’m just giving you a heads-up and be aware.
If both the companies gets H1 CoS before Oct 1st, then you have a choice, consider, the Company A gets approved before oct 1st but company B took time and approval delayed beyond oct 1st, then you have to work for company A.
HTH,
Anil
Thanks Anil !!
NG/Anil,
Those are correct answers. Anytime one H-1 gets approved w/ COS, then you will have to work for that employer from COS approval date (typically Oct 1).
Yes, there would be an issue if your H-1 w/ other employer gets approved while the one w/ L-1 employer is still in process. This way you will have to start working for the new employer, and your current employer may not take it lightly. If this is about to happen, and you want to continue working for current employer, then you should upgrade their petition to PP.
Thanks Saurabh.
Yeah, the other scenario is what I’m worried about. I do want to continue working with my current employer A (the L1 employer).
– So one way is to get the petition upgraded to PP. Can i get the petition upgraded myself , if i know the receipt number?
– If current employer’s petition is in RFE & other employer B’s petition is approved, can i maintain my L1 status by going out of US and returning back before Oct1 (say Sept last week) on my L1 ?
Thanks,
NG
Ng,
No the employer needs to file for the upgrade. However, you can pay for the fees (it is legal to do that).
To maintain L-1 status, you need to leave US and return to US on L-1 visa after Oct 1. If you return prior to Oct 1, then also your status will change to H-1 from Oct 1.
Thanks again Saurabh.
Sorry, for the barrage of ques, but I promise this is the last one 🙂
– If current employer A’s petition is in RFE & other employer B’s petition is approved, i can maintain my L1 status by leaving US & returning back on L1 after Oct1. After I return after Oct 1, if the H1B (& its a COS) of current employer A gets approved, will the my status automatically change to H1 or do I have to go out of US & get the H1 stamped (since i traveled while COS was in process)?
[[My intention is to be be employed with current employer (L1 or H1b doesn’t matter, since my L1 is valid till May 2013 ). And I know the best option is just to ask employer B to withdraw their petition, but I just want to weigh all the permutations/ combinations]]
– Ng
NG,
If you leave US and B’s petition is pending, then your COS would be abandoned. So even if B’s petition gets approved later, it will get approved w/o COS. So your status would remain L-1 which is what you would have received while entering US.
Hi Saurabh,
I was in US on L1 B with employer A. I got converted to H1 B with new employer ‘B’ and resigned from ‘A’. I started working for ‘B’. After working for 1 week I have to travel to India due to some personal work. Since there was a status change I have to go for visa stamping for my H1 B. The delhi consulate denied my H1 B visa and said the current H1 petition with current employer will be revoked.
Since my employer has no presence in India I had to join Indian company ‘C’. Recently another company called me and has shown interest to do the H1B transfer. I was not aware about this fact that even after the rejection I can transfer with other company. Could you please help me with following question:
1. Given above scenario, Can I do the H1 B transfer based on the I797 receipt, which I had got for my H1B petition with earlier employer, ‘B’.
2. will I require to submit the 2-3 month payslip of the last employer? As I just work with company ‘B’ (US employer) only for a week I will not be able to do so.
Your response will be very mush appreciated. Thanks in advance.
Regards,
Sanjay
Sanjay,
1. Yes, you can do that on the basis of previously approved H-1 petition
2. You will need payslips for 2-3 months. As you remained in US on H-1 for just 1 week, this turns out to be 2-3 months of L-1 payslip and 1 week of H-1 payslip.
Thanks Saurabh. This helps me a lot.
Regards,
Sanjay
Hi Saurabh,
I am applying for a H1 transfer and the new employer has mentioned in his employee agreement that they will charge $12,000 dollars, if I leave within 1 year. Is that legal within this country? Even if they charge, how would they withhold my payments etc..? Please let me know, I am seriously confused whether to take up this employer or not while filing for transfer.
BJS,
The company cannot charge any amount they can dream of. The employment is at will and anyone can terminate the relationship at any time. However, an employer may be eligible for reasonable liquidated damages, but then they will have to show the same. I would suggest getting the letter reviewed by a labor lawyer in your state, and get their opinion as well.
My Passport is stamped with visa of Company X valid till March -2014. If I find a new employer in USA and now I have approval notice of for new Company also. My query is
a) If I go back to India before march -2014 as mentioned above, do i need to go for the stamping again since I have changed my employer in USA.
Rupesh Shah,
You don’t need to go for H-1 visa stamping as long as the current visa stamp is valid and has not been canceled (when it is canceled consulate will put a canceled w/o prejudice stamp across it). In your case, no stamping required till Mar 2014, but required if you travel outside US after that.
Presently I am working in USA on H1B visa. My wife is in India and she has also got H1B from an organization. She has never traveled on the stamped H1B visa from her current organization. Now my query is
a) If she goes for her H4 stamping ,will the USCIS team cancel her existing H1B visa?
b) If she comes to US on H4 Visa Is it possible that she can find an employer in USA and her H4 visa can be converted to H1 again as a part of cap exempt ?
c) IF YES :- Is there any kind of clause for this kind of conversion from H4 to H1 where this is not possible
d) Will there be any problem in converting from H4 to H1 if the current organization revokes her H1B and takes back the original copy of approved petition.
e) At the time of applying for H1 B for new company as a part of cap exempt what all documents will be required. This I am asking only for a specific clarification i.e. Does the process of new H1 B also demands the original copy of approved petition from previous organization
Hi Saurabh I have Written my queries related to h1 – H4 – H1 visa conversion. Many Thanks in advance Saurabh for the help .
RS,
1. Does she already have H-1 visa stamped in the passport? They may cancel H-1 visa as H-1 and H-4 are meant for different purposes. Even then her petition will still remain valid
2. Yes. An employer (old or new) can file cap-exempt petition for her along w/ COS from H-4 to H-1
3. It is always possible as long as the person has copy of previously approved H-1 petition (if not, then just the receipt number will also work)
4. No. Refer (3)
5. Refer (3)
Hi Saurabh,
Have the following queries:
1) My employer will end my work as of tomorrow and will submit the cancellation of H1 by Monday [June 11, 2012]. They will still run payroll cycles on June 12 and June 26 to pay us till tomorrow. If I apply for H1 transfer by June 26, is that going to be fine?
2) Based on the above scenario, if my H1 is cancelled as of Monday [submitted for cancellation], but my payroll is run till 26th of June will I still be out of status after my H1 cancellation?
3) If I file for transfer anytime before June 26 is that fine to go through?
4) Is there any scenario where USCIS can reject a H1 transfer even without issuing an RFE or they first RFE and only then reject?
5) I have all my interviews scheduled for next week and if one goes through, they may file anytime the week starting June 18 [by that time the H1 quota also would be over]. Is that timeline good enough to transfer or should I look for some employer who is willing to transfer immediately?
Please respond. Thank you very much!
RRK,
1. What dates will those paychecks cover? Are they for June or May?
2. Depends what period you are paid for. If you are paid till June end, then it may be ok. But if those paychecks are for May, then it will not be ok. In either case you need to act urgently
3. It may or may not. Varies from case to case
4. In most of the cases, they issue RFE first
5. If possible look for someone who can file even earlier than that. Remember, earlier the better. The longer it is delayed, higher the probability of RFE
Hi Saurabh,
Is notice period mandatory ? I am on bench and have asked to get relieved in 2 days. My employer is asking for some money.
1 – Is this legal?
2 – If I do not pay, what happens?
3 – It is clear in the offer letter that my employment is at will. But it also carries a statement that a 30 day notice/ salary in lieu is needed.
4 – Does this hold in the court if I do not pay them anything?
Please help.
Thanks
BM,
1. They cannot ask for money. What are they asking the money for?
2. They might sue you or send you a notice. However, the law will be on your side if you do not owe them money
3. It is better to get the contract reviewed by a labor attorney. If the employer is letting you go, then they also need to give you 30 day notice period based on that contract. A contract cannot be one-sided
4. Yes, you may win in the court
If the employer is not paying you on bench, then they are breaking the laws. I would suggest talking to an immigration and labor attorney about your case to know the legal rights you have.
Hi Saurabh,
Thanks for the reply. Below are my answers/ questions for your suggestions:
1. They cannot ask for money. What are they asking the money for? : THEY HAVE HELD MY PAYCHECK FOR THE LAST MONTH. I HAVE NOT EVEN RECEIVED THE
PAYSTUB. HOW CAN I ADDRESS THIS? THIS IS GETTING ON MY NERVES. HOW CAN THEY NOT GIVE A PAYSTUB THOUGH THEY HOLD BACK THE MONEY?
2. They might sue you or send you a notice. However, the law will be on your side if you do not owe them money
3. It is better to get the contract reviewed by a labor attorney. If the employer is letting you go, then they also need to give you 30 day notice period based on that contract. A contract cannot be one-sided
4. Yes, you may win in the court
BM,
It is illegal to withhold the paycheck. I would suggest contacting a lawyer immediately about your case. The law is on your side.
Hi Saurabh,
I have valid h1b petition(I797) from employeer A, during the time of visa stamping, they rejected and provided a green slip, to provide some required doc and re-apply for visa stamping, but my employeer have still not provided it. I wanted to ask
1.whether my petition is still valid
2. Can I transfer to the new employeer
3. When I apply for transfer, is that mean I will come under that quota.
Kiran,
1. Yes
2. Yes
3. You are cap-exempt. So you don’t need to go through quota again or be subject to April filing and October start date.
Hello Saurabh,
1. I am currently employed with Company A and my petition is valid till Sep 2014.
2. I accepted an offer from Company B and they filed for my H1 transfer (Premium) on May 5th 2012. This transfer got approved on May 11th 2012. However, Company B has not yet given me the I797.
3. Meanwhile, I have got another offer from Company C. Company C also applied for my H1 transfer on June 4th 2012 (Premium), using Company A’s I797. But Company B’s I797 was not submitted.
Do you think, the H1 transfer applied by Company C will be approved without the I797 document from Company B ?
To re-iterate, I have NOT joined Company B. I am still employed with Company A.
Thanks in advance, Saurabh.
NY NY,
It should be fine. You can do a transfer to C using A’s petition and A’s payslips (especially if you are working for A).
Also, H-1 is not “transferred”. What happens is that you end up w/ multiple approved petitions and can chose and pick one you want to work for.
Hi Saurabh,
My H1 transfer got approved and is valid from June 6 2012. But I want to resign and take a break of 3 days from tomorrow.
1 – My new attorney said I better have continuous employment. I do not understand why.
2 – If I take a 3 day break – will I need to go to home country and get H1 stamped for new
employer?
3 – Will it be considered out of status for 3 days when I am not working? (My Old H1 validity is Feb 2012 – Nov 2012).
4 – Will this be an issue in future?
Please help.
Thanks,
Mahantesh
BM,
1. IMO, it would be ok to have a 3 day break in b/w
2. No, that is not required
3. If your new employer agrees then you can take the break.
4. I don’t think it will be an issue in future
But attorneys have more legal knowledge than me 🙂
Hi Saurabh,
I was on L1 for 2.5 (2008 – 2011) yrs and then got my H1 COS approved for another 3 years till 2015.
Does my H1 still have another 3 years of extension left or it is a total of 6 years on L1+H1 ?
Please help.
Thanks
BM,
6 year clock includes time spent on both H-1 and L-1. So you don’t have 3 years of H-1 let. Also, only the time spent inside US is counted.
Thanks Saurabh 🙂
Hi Saurabh,
I have a query on LCA processing and H1 amendment. My H1B was approved in March’12 but the LCA was not correct, it had a higher role/level so had higher salary. So my company wanted to change LCA to a lower role/level but didnt have time to process so then send me to USA in April end saying they will file LCA amendment as soon as I reach USA and I will get new LCA before my 1st salary. Subsequently they said will file H1 amendment as well. Now over a month passed but they have not filed/recevied new LCA. Now my company is paying me as per the LCA which they suppose to file but not filed yet.
Now – I know it is illegal to pay and accept pay below LCA. But I wants to know, once my company files new LCA, can it be backdated from the day I entered USA or it will be applicable from the date it is received or approved my dept of labor?
Also, what can I do if my company is not filing it now too?
Thanks,
Amit
Amit,
I don’t think it can be backdated. The right thing to do is to pay as per current LCA and then pay lower salary when the new LCA gets approved. There is not much you can do except to reason w/ your employer. If you have an attorney you can talk to them and maybe they can explain the consequences to the employer.
Thanks Sourabh.
So will it (me getting paid less than the LCA) create any problems for me in my future visa processing or visa transfers?
Thanks,
Amit
Amit,
Yes, it can have issues in future.
Hello Saurabh,
I’m working as an H1b contractor. I have BS + Four and a half years of experience, my previous client, which is an American organization, wants to hire me on a permanent basis and is ready to file for my GC. They say that even though I have 4.5 years of experience they can still file in EB2 category because the job description is for BS + 5 years of experience. Have you seen any previous case of such scenario ?
Regards,
Abhishek
Abhishek,
IMO, it may not get approved. If the job requires BS + 5 years, and you had just 4.5 years then you do not qualify for that position and EB-2. It may go into audit (similar to RFE). Was this said by the employer or their attorney?
Hi Saurabh,
Please find the following questions:
1) My Employer is stating that he would cancel the H1 as of next week and asking us to work from India location. He claims that he would not cancel the H1 if we go and work from India. He also mentioned that within 2 months, when the contract is signed, he would bring back with the same H1. Is that possible? Can we trust that?
2) If I go back to India and continue with him and hoping that H1 is not canceled, can I still transfer to another employer [who has more operations in India for e.g. Wipro, Infy or Cognizant] and travel for them directly?
3) If he cancels my H1 after going back to India, can I still apply for cap excempt if some employer is willing to market me and wait on my stamping?
4) Can I still continue in US and wait till I get my next job? Will my H1 transfer get approved assuming its cancelled next week and the H1 transfer is filed the subsequent week?
5) Is there any other scenario as my I-94 is till end of 2014. I am missing almost 2.5 years in H1. 🙁
If I am you, I would find an employer who can file a H1 transfer on premium processing and move out as soon as possible. We never know what is gonna happen after going back to India. Hurry up and take a bold decision my friend.
SSR,
1. I don’t know your employer to say if you can trust them or not. But if they withdraw your H-1 you will have to either file H-1 transfer ASAP or leave US
2. Yes
3. Yes
4. You always need to be employed and getting paid while in US. So if your employer fires you by withdrawing your H-1, you need to find another employer to file H-1 transfer ASAP or leave US.
5. Refer (1) and (4)
Thanks,
For extension to Point # 4, do I have any grace period, as most likely my employer would threaten to cancel this week [June 6 to June 8] and my filing may happen from June 11 to June 15. Can I wait till that time in this country??
SSR,
There is no official grace period. If there is a gap, then USCIS will review it case by case basis. If it’s a gap of few days, it may still be ok but anything running into weeks can be an issue.
hi sourabh,
I came to US on H1 around two years back and it expired on May /2012, My company filed for an extension in regular processing and i have the receipt number and still waiting for the decision. They said i can work for some 200 odd days still USCIS declare the decision. My questions are
1) Is it valid to work during this period.
2) Can I change company during this period.
All i have is the receipt number filed for the extension.
J,
1. Yes, you can work for up to 240 days beyond I-94 expiration date as long as extension was filed prior to I-94 expiring
2. A new employer can file H-1 transfer for you. But USCIS will not issue it w/ I-94 as your current I-94 has expired. So you will be asked to go for consular processing. Besides your previous employer can withdraw H-1 extension once you leave them there by making it necessary for you to leave US (as your previous I-94 has expired)
Hi Saurabh,
I got my H1 transfer approved on May 27, 2012. My new employer has given me a joining date of Jun 11, 2012.
1 – Can I take a break from June 3 – Jun 10? Is it legal?
2 – Will this gap be an issue in the future?
3 – Will the approved petition contain the start date as May 27 or June 11?
Thanks,
BM
BM,
1. I think it ok to take a week break before joining the new employer. It should be fine but you can check w/ new employer’s attorney as well.
2. I don’t think so it would matter
3. It would have May 27 unless employer would have put June 11 as the intended start date in the I-129 application.
Saurabh,
My H1 Visa expired on Sep 16 2010 and I got the extension until Sep 2013. Now I changed my employer and got the transfer until March 2015.
I am planning to travel to India on this September. So I need to go to the consulate for Visa Stamping.
When I checked the VFS site, it says “Applicants who havge US visa that expired more than 12 months ago, do NOT qualify for visa renewal category.”
Will I be coming under regular category than renewal category? Will it have any impact on visa approval?
Thanks
JK
JK,
You have to select No to that option. It will not impact the outcome.
Thanks Saurabh.
My son and wife have the visa until Sep 2013. You already told it is not necesary to get stamping for them.
But my new petition expiry date is march 2015. So to synch the visa and I-94 between me and my family, If I take my family also to Visa stamping, will that be any problem or negaitve impact?
Thanks
JK
JK,
If you want to sync all the visas, then you all can go for visa stamping. I-94 will be synced even w/o going for stamping. Let’s say your wife and kid leaves US and then return to US and show your newly approved petition at PoE. At that point, they will be issued new I-94 valid until Mar 2015, there by making it similar like yours.
Thank you Saurabh..
Hi Saurabh,
I am currently on L2 and applied for EAD. I would like to know whether I am eligible to start work now itself or should I wait till I get my EAD approval in hand.
Raji,
You will have to get SSN and for that you need to have EAD in hand. Lot of companies would like to see work authorization before hiring you as it is required as part of I-9 form.
Hi,
I have the appread for h1 visa in hyd and got 221(g) and submitted the documents but still it is under admin processsing. now i want to travel on B1 and then Change the status to H1 by transfering to new company. is it ok to go in that route or do i need to wait till the status comes.
they are not willing to do h1 transfer from india . they are saying if u come to usa then we can do
At POE, when they enter your passport number, they will come to know that you have H1B petition approval. POE can question on that.
You can travel to US with B1 since you are not H1 visa stamped yet. I believe this is for new employment and not the same company where you are traveling with B1. In that case, you can tell (if questioned only) , you got some tech.discussions with client for the project or any legitimate reasons to get POE approval.
No, Since you are holding H1 petition, the petition is of I-797B (Notice of action) which means while filing H1 you are resident of non-US state. This type of H1 petition has to go via stamping, can’t do transfer with CoS within US.
CoS is possible only with I-797C (Notice of action) where visa stamping is not mandatory to start working for new approved petitioner.
Hope this helps
Anyway, check with immigration lawyer once you are in US.
Krish,
If you use B-1 to enter US and then move to H-1, then that would be misuse of B-1 visa. You need to have legitimate reason to use B-1 visa to enter US. It should not be used to skip stamping. If you do travel on B-1, then the new employer will have to file a cap-exempt H-1 petition along w/ COS from B-1 to H-1. At this point, USCIS can question the intent of using B-1 to enter US and moving to H-1.
Thanks Saurabh . new employer is ready to do that way like filing a cap-exempt h1 petition along w/COS from B-1 to H1.Because if we want to transfer H1 directly from india again USCIS is asking lot of queries while transfering aswell as at the time of stamping. samething happend to my current visa.. i got query while transfering from Emp A to current employer then once i went to stamping again i got the query and its been almost 3.5 months still no response from counsilate. i am not sure what to do .. thats why i have choosen this way i know it worng path but not sure what to do
Krish,
If you and employer want to go this way, then it’s your choice. Good luck!
Krish,
just curious, is it a full-time employee in a MNC (well known company) or a consultant (to work as contractor in a MNC) ?
desi Consultatnt firm
Then its better to go in the employer way.
Hi Saurabh,
I never been in US. Just now i cleared my VISA interview. If I switch company then will my visa will be valid? it mean can i transfer my visa for new organization? Please guide me as i have an offer for new company.
Yes, its possible. H1 transfer has to be done and then you have to go for visa stamping, but visa stamping depends on the company policy, some companies require to travel to US on their visa stamp, some dont.
VO can question on the H1 transfer , if you go for visa stamping, as you just got Visa stamped and again you have done H1 transfer without using the previous stamp by not travelling to US..
You can give legitimate reasons for doing so…
All the Best
I have valid H1b visa till Sep2013. When I was in US I was on Perdiem basis and I dont have paystubs. Do I quality for a transfer of H1b if some company is offering.
I have tax submission US1040NR.
Please reply me back ASAP
Karthikeyan,
You are not considered to be in legal status if you remained in US on H-1 on per diem status. Why were you issued 1040NR and not W2 for your H-1 work? You should consult an immigration lawyer on how to proceed.
Hi,
I was in US on H1-B for more that 2 years and I have H1-B VISA stamped and petition approved from company A. Now due to some reason I have resigned and traveled back to India. Company A has already informed USCIS about cancelling my petition. Now I have another sponsorship who is ready to transfer my H1-B.
1) Can I use my previous employer A petition which is already notified for cancellation?
2) Whether I will be considered in new quota or cap exempt?
Thanks in advance!!
Ravi,
1. The new employer will have to file a cap-exempt petition for you, and submit old petition’s copy as proof that you have already made through the cap
2. You will be considered cap-exempt based on your previous approval even if it is withdrawn by the employer.
Thanks a Lot Saurabh…
one more question Is there any time limit on duration of stay in India should not exceed more than a year?
Ravi,
There is no such restriction
I recently got H1-B work permit approval from USCIS. Now I need to file for stamping request.
The question is, while applying for work permit on client invite letter as well as other documents the office address at on site location was different. Now client office is recently shifted to different location, so do I need amendment request before filing stamping request? Is it mandatory to do amendment for work location city changes ? Can we do it within stamping request or we need to follow amendment separately?
Amit,
If it is in a different city, then new LCA is required followed by H-1 amendment. If the new location is in the same city, then you can ask for a letter from client stating that their office just moved from xxx to yyy.
Saurabh, The location changed from Warren, NJ to Jersey City NJ. So ideally as per your suggestion we should acquire new LCA and then H1 amendment. But, the requirement is to travel ASAP , probably within a month.. If we go though procedures again then their are quite chances to cycle in same actions like to get required docs/letter from client, LCA posting, Amendment document submission, wait for USCIS response , chances of RFE and all.. Do you think its better if I could just enter in US with Old address and do amendment after entering in US.. The old Office of client is not shut down the only thing is my project is shifted to new location in same state (NJ). Waiting for your helpful thoughts.
Amit,
The right thing is to do the amendment first and then travel to the new location. If you want to do the other way around, then its better to check w/ your attorney.
Hi Saurabh,
I have scheduled H1-Visa interview on June 4th, I submitted my DS-160… in that i mentioned my salary as $50K (as per LCA). Today my petioner has given offer and cover letter, they mentioned my salary as $60K. It is $10K difference.. is it ok? my compnay told me it’s not an issue.. if offer > LCA that won’t be any proeb.
They are ready to provide new letter as $50K… can you suggest me is it fine ($60K) or do you want me to take new letter with $50K.
Just to let you know, my total IT exp- 9+ yeras
Awiating for valuable response.
Thanks
Which area in US your LCA is certified for ?
Hi Saurabh/Anil,
My LCA certifyed – Atlanta, GA.
Hi Saurabh/Anil,
Please reply back at the earliest.
PVS,
The salary mentioned in LCA is what the H1B is approved for ? Better to go with the offer letter matching the LCA. If you don’t have it, don’t panic. Offer letter if they asked then show to the VO. Be confident, if they ask the difference, give him the legitimate reason.
Hi Anil,
Thanks, I have a small query… I have 9+ years of exp, as per LCA my salary is $50K, since i have more exp… can i face any query from VO why you are joining for $50K. is it fine $50K for 9+ years of exp(i am in IT-Testing).
Plz let me know if you have any suggesition… How can i justify my salary package(if VO ask abt salary)?
PVS,
There’s nothing like that. LCA certification is with DOL, after that when you are filing along with H1B, that would make sure you are paid on or above minimum wage prevailing in that county/state. It is not desired to be matched with yrs of experience. USCIS will check only the salary is above the min wage and once it is approved, no need to rethink on that.
PVS,
Like Anil mentioned, as long as the salary is more than LCA amount, you should be fine. However, you have 9+ years of experience and 60K looks on the lower side. If the offered position is an entry level position or someone w/ 3-5 (for example) years of experience, then USCIS can raise a query stating that you are over qualified for the position. I have seen few of these recently.
The LCA mentions just the position and doesn’t note the applicant, his/her qualifications etc. So just b/c LCA has been approved for a position and salary, doesn’t mean it can be used for your petition.
Does that clarify?
Hi Saurabh/Anil,
Thanks a lot for your response
PVS,
Read this recent interview experience where query was raised as the person seem overqualified for the salary mentioned in the LCA.
Hi,
I am currently working for company A in India and have accepted an offer from Company B in the US. My H1 Visa has been transferred to Company B. However I am now considering staying back with Company A. Would the H1 need to be transferred back to A. Would there be any legal hassles with this process. Hope you could provide some insight.
Thanks,
AP
Arun,
Even after transfer is approved, you can continue to work for old employer. Actually, H-1 is never transfered (that’s a term people use loosely). What happens is that another employer file a petition for you and once approved you end up w/ 2 petitions – one for old employer and one for new one. You can then decide which petition to use and can work either for old employer or the new one.
Thanks a lot for your response!
Hi Saurabh
I got my visa extension in April 2011 till April 2014. I came to India for stamping in may 2011 but they rejected my stamping because company didn’t provide me end client letter.
As I am in India from past one year . Can I transfer my visa to another employer ?
Regards
sidh
Sidh,
If the petition has not been revoked by USCIS (as part of 221g refusal), then you can go for H-1 transfer
Thanks Saurabh
I check status of my I797 on USCIS website , please let me know if its revoked or still valid.
On September 30, 2011, a USCIS office received this case from the State Department with a request that we review it. We will notify you when we complete our review, or if we need something from you. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283.
For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.
Regards
Sidh
Sidh,
From the status message it looks like they didn’t make the final decision, or in case it was made then the online status was not updated.
As the quota is still open, and if the employer is willing to wait till Oct 1, you can ask them to file a cap-subject petition. This way you don’t need to worry if the petition was revoked by USCIS or not. If the employer wants you to start prior to Oct 1, or if the quota gets over by the time you apply then you try w/ cap-exempt petition and then see what happens.