H1B transfer required (I didn't enter US yet)

[yshpakov]

Hi all,

I got into trouble. And I need you help please.

I have H1B petition approved for employer A (in November, 2011)

I have H1B visa stamp issued for employer A (in January, 2012)

Now employer A closed my position, refusing my employemt :(

So I haven't entered US with H1B and so I haven't opened my H1B status (no any I-94).

I interviewed recently and got a offer from company B.

Company B is ready to file H1B petiton for me.

Is it possible to transfer my H1B or I'm a subject of cap?

So, do I need wait October, 2012 (with entering US and starting to work) or can I start working as soon as the new petition will be approved?

And in this case, maybe I can enter US and start working for company B as soon as the new petition will be filed (and I don't need wait the approval)?

The main problem with transfer I see is absence of:

- pay stubs

- I-94

Thanks a lot

Best regards,

Yury Shpakov

[SameerH1Bworker]

H1B transfer is not possible but cap exemption is possible as per my knowledge.

[JoeF]

An H1 transfer is just a new H1 petition.

A new employer can file an H1 for you at any time, since you already have been counted for the quota.

[yshpakov]

JoeF,

Thank you.

But I met the following:

Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.

What do you think about this (I mean "unless.....")?

Best regards,

Yury Shpakov

[JoeF]

If the person has been outside the US for a year, the person can choose to use the existing H1 and get the remaining time, or the person can get counted for the quota again and get the whole 6 years.

[yshpakov]

JoeF,

Thank you for such an interpretation.

Your interpretation is more logical than interpratation of my prospective employer lawyer:

He is subject to the cap. Because he never came here and has six full years ahead of him, he is not cap exempt. We’d have to file for an October 1 start date. This is not a transfer because he is not here and working. It would have to be a new petition. If he had come here worked and gone back, he would not be subject to the cap and he would not have to wait until October 1, but he would have to wait until the petition was approved in order to come.

Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:

Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection ©, toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.

I’m not sure if he could use his current visa. If you want to go ahead with his petition, we could look into it.

If there is any way that he could come here and work for the other company, even for a short while, we could apply for a transfer and then he could start with <New_Employer> as soon as it’s filed. He would have to come here with the intent to go to work for the other company and he would have to work and the company would have to pay him the full amount listed in the petition. If he comes but does not work for them, he will be out of status and could not apply for a transfer. As part of the petition, we’d have to file copies of pay statements, showing he had been working in valid H-1B status.

Hmm. 2 interpretations... Which one is really correct?..

JoeF, maybe you could share some URL link supporting your opinion?

Thanks a lot

Best regards,

Yury Shpakov

[goomail]

H1 cap has notihng to do with entering in US or getting a visa stamp. If you had an approved H1 petition within last 6 years, you are cap exempt.

[JoeF]

Adjudicators Field Manual, available on the USCIS website:

"A new period of authorized stay may begin only when the alien has resided outside the United States for a period required by the classification, or when the alien qualifies for an exemption from limits on the maximum period of stay as discussed below. "

Notice the "may" (highlighted by me.)

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-0-13680.html#0-0-0-509