H1B Visa Transfer Before October 1st

[captcha]

I have a situation wherein company A applied for my H1B visa on April 2014. However, in May 2014, I was offered a better job with better career prospective and much better salary from company B. I thought that this would be a positive leap for my career, and so I have decided to join them. 

 

I asked for them to file for my H1B, but this time, my application will be cap-exempt. I was talking to the lawyer this week from company B, and she wrote to me the following: 

 

If your current H-1B cap petition is revoked before October 1^st, it can potentially impact B’s H-1B petition.  If the cap petition is revoked before the start of the fiscal year, the USCIS can deem any future H-1B petitions subject to the cap again.  Hence, you should wait until a decision on B’s H-1B petition is issued; however, the risk that the petition could be revoked in the future remains if the initial H-1B cap petition (A's petition) is revoked before October 1^st.

 

The last line here is what I don't understand here. I talked to the lawyer on the phone after this, but she kept repeating this same thing. Assuming I get an approval for B's petition and I resign from company A after that, how will A's revocation of their petition affect B's approval? By that point of time, USCIS would have already made a DECISION on my application with B. How can they go back on that decision? This seems really weird to me.

 

Can someone please clarify? If A revokes their petition before October 1st, and I already have B's approval in my hand, can USCIS just go back on it's decision, and decide to reject B's petition (which had already been approved)? 

 

NOTE: I am on my STEM OPT right now, which is valid till June 2015. 

 

Thanks, and any/all help is appreciated! 

 

[jairichi]

I have a situation wherein company A applied for my H1B visa on April 2014. However, in May 2014, I was offered a better job with better career prospective and much better salary from company B. I thought that this would be a positive leap for my career, and so I have decided to join them. 

 

I asked for them to file for my H1B, but this time, my application will be cap-exempt. I was talking to the lawyer this week from company B, and she wrote to me the following: 

 

If your current H-1B cap petition is revoked before October 1^st, it can potentially impact B’s H-1B petition.  If the cap petition is revoked before the start of the fiscal year, the USCIS can deem any future H-1B petitions subject to the cap again.  Hence, you should wait until a decision on B’s H-1B petition is issued; however, the risk that the petition could be revoked in the future remains if the initial H-1B cap petition (A's petition) is revoked before October 1^st.

 

The last line here is what I don't understand here. I talked to the lawyer on the phone after this, but she kept repeating this same thing. Assuming I get an approval for B's petition and I resign from company A after that, how will A's revocation of their petition affect B's approval? By that point of time, USCIS would have already made a DECISION on my application with B. How can they go back on that decision? This seems really weird to me.

 

Can someone please clarify? If A revokes their petition before October 1st, and I already have B's approval in my hand, can USCIS just go back on it's decision, and decide to reject B's petition (which had already been approved)? 

 

NOTE: I am on my STEM OPT right now, which is valid till June 2015. 

 

Thanks, and any/all help is appreciated! 

You need to wait for employer A's H1B petition approval. Anytime after approval employer B can file a cap exempt H1B petition.

[t75]

It sounds like A's petition has not been approved.

[captcha]

@jairichi and @t75: Thanks for your replies!

 

The fact is, A's approval has in fact been approved. I got the I-797A Notice of Action for employer A two weeks ago. So B's transfer has been filed only after A's approval. The only fact about my situation that is different from what I've seen on this and other forums online, is that I'm not on H1B visa status yet. I'm still on F-1 STEM OPT, and I'm in that weird April - October time period when your H1B visa has been approved, but you're not yet on it :)

 

So now, given that H1B visa has been approved for employer A, and given that the transfer application for employer B has already been filed, if B's application is to be approved after which A revokes their petition, can it potentially harm the approval of employer B? Can USCIS go back on B's decision and say "no no, since A's petition was the basis for your approval, and now that is revoked, you are cap subject again B"?

[jairichi]

@jairichi and @t75: Thanks for your replies!

 

The fact is, A's approval has in fact been approved. I got the I-797A Notice of Action for employer A two weeks ago. So B's transfer has been filed only after A's approval. The only fact about my situation that is different from what I've seen on this and other forums online, is that I'm not on H1B visa status yet. I'm still on F-1 STEM OPT, and I'm in that weird April - October time period when your H1B visa has been approved, but you're not yet on it :)

 

So now, given that H1B visa has been approved for employer A, and given that the transfer application for employer B has already been filed, if B's application is to be approved after which A revokes their petition, can it potentially harm the approval of employer B? Can USCIS go back on B's decision and say "no no, since A's petition was the basis for your approval, and now that is revoked, you are cap subject again B"?

No issues at all. Since employer A's petition is approved employer B can file a cap exempt H1B petition anytime. In your case even before H1B start date.

[prass4murthy]

Hi i have exact same situation, and the attorney from representing my new company is saying , there has been a new amendment from USCIS which has been shared with the Department of attorneys. according to that he says if the old employer Revokes the H1 even after the transfer is Approved by USCIS for the new company it would still be cancelled.

he said this is a new change being brought from this year.

 

Can anybody Shed light on this ? is there a new change of amendment as stated above.

[jairichi]

Hi i have exact same situation, and the attorney from representing my new company is saying , there has been a new amendment from USCIS which has been shared with the Department of attorneys. according to that he says if the old employer Revokes the H1 even after the transfer is Approved by USCIS for the new company it would still be cancelled.

he said this is a new change being brought from this year.

 

Can anybody Shed light on this ? is there a new change of amendment as stated above.

Sorry I am not aware of that. If you want you can schedule a consultation with an immigration attorney from Murthy law firm.

[zl1025]

Hi i have exact same situation, and the attorney from representing my new company is saying , there has been a new amendment from USCIS which has been shared with the Department of attorneys. according to that he says if the old employer Revokes the H1 even after the transfer is Approved by USCIS for the new company it would still be cancelled.

he said this is a new change being brought from this year.

 

Can anybody Shed light on this ? is there a new change of amendment as stated above.

I have a similar situation. My lawyer told me there was a new policy came out about h1b transfer recently. Is there anyone knows whether a new change of status petition can be submitted using the cap that has been approved or not? If the previous company does not withdraw my h1b, can I transfer before oct.1? Thanks,

[zl1025]

I have a situation wherein company A applied for my H1B visa on April 2014. However, in May 2014, I was offered a better job with better career prospective and much better salary from company B. I thought that this would be a positive leap for my career, and so I have decided to join them. 

 

I asked for them to file for my H1B, but this time, my application will be cap-exempt. I was talking to the lawyer this week from company B, and she wrote to me the following: 

 

If your current H-1B cap petition is revoked before October 1^st, it can potentially impact B’s H-1B petition.  If the cap petition is revoked before the start of the fiscal year, the USCIS can deem any future H-1B petitions subject to the cap again.  Hence, you should wait until a decision on B’s H-1B petition is issued; however, the risk that the petition could be revoked in the future remains if the initial H-1B cap petition (A's petition) is revoked before October 1^st.

 

The last line here is what I don't understand here. I talked to the lawyer on the phone after this, but she kept repeating this same thing. Assuming I get an approval for B's petition and I resign from company A after that, how will A's revocation of their petition affect B's approval? By that point of time, USCIS would have already made a DECISION on my application with B. How can they go back on that decision? This seems really weird to me.

 

Can someone please clarify? If A revokes their petition before October 1st, and I already have B's approval in my hand, can USCIS just go back on it's decision, and decide to reject B's petition (which had already been approved)? 

 

NOTE: I am on my STEM OPT right now, which is valid till June 2015. 

 

Thanks, and any/all help is appreciated! 

Hi, Is there any update for your case? Can you share whether the transfer is successful or not? Thank you!

[SriRamSS]

Hi!!

 

It indeed looks like there's a new regulation from May 2014 by USCIS on H-1B transfer before Oct 1st. The issue is when the first petitioner revokes his petition before the effective date.

 

I've seen a couple of posts by immigration attorneys on this - but I've not come across any documented evidence in the USCIS website.

 

 

Seniors & Advanced members,

 

Please let us know about the risk of H-1B transfer before Oct 1st. This is quite crucial, as many of us with approved H-1B petitions will be thinking in the line of H-1B transfer to other prospective employers.

 

Thanks much, in advance.

 

 

Also, @captcha, any update on your transfer petition? Did your employer file the transfer petition? And, how did it go?

Your response on this will help many of us in similar scenarios. Thanks!

[sdrh1b2015]

Hi,
 

I am one of those impacted by this new change implemented by USCIS. I was on L1 with employer A, and got an H1b approved, to be effective from oct 1 2014. 

 

But then I got laid off from Company A! Got an offer from B, and felt lucky. But while my transfer was in process, company A revoked the H1b, and I have a NOID (notice of intent to deny) from USCIS, claiming that my petition can no more be counted as cap-exempt.  Wish I knew about this change in law a few months ago. 

 

By the way, based on the contents of NOID I got, looks like - even if my H1b transfer had been approved before revocation, I would have still got a NOIR (notice of intent to revoke) after my original petitioner revoked the visa. 

 

The bottom line is -> if it is a new h1b, wait until Oct 2, to file any transfer. If not you certainly run into the risk of getting a NOID or NOIR. 

 

I do hear that there are some inconsistencies though with the way USCIS uses this change of law.  In case someone got their petition transfer  approved and never got a NOIR, after the original petitioner revoked the visa, please post that info here, would be very useful to know. 

 

- sdr

[petey2428]

Hi there! I'm in the same situation. Any updates? Thanks!