H1B Visa Transfer Approved Before October 1st, Old Employer Revokes Petition

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Hi All, 

 

First, a bit about myself. I am working in the U.S on my STEM OPT that expires in June, 2015. 

 

My current employer filed for my H1B visa in April, 2014. In May, 2014 I came across company B which had much more challenging work according to me, and provided a much better career path. So I decided to join company B. They filed for my H1B visa "transfer", and I recently got that approved too (in June, 2014). So basically, at this point, I have two I-797A approval letters: One from company A, and one from company B. 

 

I asked the lawyer from company B if there was any risk involved in the transfer, and at this stage, the lawyer gave quite a surprising answer. Here it is: 

 

Technically, the H-1B petition filed by the company-B is not a transfer petition.  It is a change of status application that is not subject to the annual H-1B cap because you have already been counted towards the cap based on your current employer’s approved H-1B cap case (i.e. company-A).  Since this is not a transfer case, it doesn’t require you to be employed in H-1B status prior to joining company-B.

 

However, if your current employer (company-A) revokes their cap-subject H-1B petition before October 1st, the USCIS can at their discretion revoke company-B's H-1B petition since it would then be subject to the H-1B cap.  Since there are no available H-1B visas for this year, company-B would not be eligible to sponsor a cap-subject H-1B for this fiscal year.  Whether the USCIS will revoke company-B’s H-1B petition if your current employer revokes their H-1B petition is unknown as it is at the discretion of the USCIS.

 

This is both a shocking and surprising response for me, from company B's lawyer. This basically means, that after I leave company A, they can go to USCIS and revoke their petition. And this action of company A can lead to USCIS revoking my already approved I-797A for company B! This means that anyone who is on OPT, is at risk of getting his/her transferred approval revoked, if he/she is transferring before going on H1B status (i.e. October 1st). Does this even make sense!? 

 

I thought that once a transfer is approved (which is my case), whatever company A may do, they cannot jeopardize company B's approval. But what this lawyer says above is contrary to that!

 

Can someone clarify this point for me (preferably with some clauses/notes from legal books/referendums) please? 

 

Thanks, and any/all help is appreciated!

[rahul412]

 

Technically, the H-1B petition filed by the company-B is not a transfer petition.  It is a change of status application that is not subject to the annual H-1B cap because you have already been counted towards the cap based on your current employer’s approved H-1B cap case (i.e. company-A).  Since this is not a transfer case, it doesn’t require you to be employed in H-1B status prior to joining company-B.

 

However, if your current employer (company-A) revokes their cap-subject H-1B petition before October 1st, the USCIS can at their discretion revoke company-B's H-1B petition since it would then be subject to the H-1B cap.  Since there are no available H-1B visas for this year, company-B would not be eligible to sponsor a cap-subject H-1B for this fiscal year.  Whether the USCIS will revoke company-B’s H-1B petition if your current employer revokes their H-1B petition is unknown as it is at the discretion of the USCIS.

If that was just COS then how can USCIS rejects B's H1 when it was not yet filed??

 

There is some miscommunication here I guess, A has filed your H1 and was approved. So you will be on H1 from Oct 1st, so B has to file your H1 before Oct 1st. And it doesn't matter whether A's H1 is revoked or not.

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@rahul412

Thanks for replying! I think the same too, that A's petition revocation before October 1st should not have any adverse effect on B's approval. I called USCIS today, and asked them about it, and they said that if I have B's approval, whatever it is that A does, does not matter. 

 

I don't think it was miscommunication with B's lawyer. After clarifying with him a lot, it is indeed the case, that he thinks A's revocation before October 1st may harm B's approval letter (i.e. USCIS may revoke it). I think this is totally absurd and doesn't make sense. Plus, it is exactly opposite of what I have seen on almost all forums on the internet -- everywhere they suggest, that file the transfer application, get the approval for your new employer, and then only resign -- this is also called as the "safe harbor approach". Which is EXACTLY WHAT I'VE FOLLOWED. 

 

Is there any law/rulebook which helps us non-immigrants understand these laws for H1B transfers on STEM OPT better?

 

Thanks! 

 

 

[rahul412]

Check USCIS website for more details..

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@rahul412

 

Thanks for replying. There is nothing given on the USCIS website regarding this.

[prass4murthy]

I face a similar situation too, i got my h1-b approved through employer a this may and got a better offer from employer B who have filed for my transfer, but the attorney of employer B thinks if Employer A revokes my h1  even after the transfer is approved i could lose my h1 . how do we explain that it cannot happen , once the transfer is complete.

[t75]

YOU do not explain anything to a licensed attorney. TO think you are qualified to do so proves you to be a poor candidate for a US job.  If you EMPLOYER wants to engage a new attorney for advice because he has lost confidence in the current one, that is up to your employer.

 

Quite frankly, this looking for a new employer and having no loyalty for the one that did your initial filing is offensive. You made a commitment and you should honor it.

[rahul412]

If attorney himself doesn't know much about the LAW then their is nothing wrong in the explaining the LAW.

[t75]

When he passes the Bar Exam, he can do so. Otherwise, the attorney should fire him as a client. The attorney may not be an expert in immigration law but is entitled to practice law in the US, but OP is an expert in nothing. He is only a student getting "practical training" so he isn't even fully qualified in his field of study fir if he were he would have an O-1 visa and not be on OPT.

[rahul412]

When he passes the Bar Exam, he can do so. Otherwise, the attorney should fire him as a client. The attorney may not be an expert in immigration law but is entitled to practice law in the US, but OP is an expert in nothing. He is only a student getting "practical training" so he isn't even fully qualified in his field of study fir if he were he would have an O-1 visa and not be on OPT.

But in this case OP knows about his current immigration status laws, so I guess it should be fine if he simply tell him the rules with the citation.

[ashising]

Hello All,

 

I am also in similar situation and need urgent help. I am on F1 and joined a company in Feb 2014. They filed my H1b petition this year expecting their project will go for long. I made through H1B lottery this year and got the receipt number. But unfortunately company lost their client and now want to revoke the H1B. Can you please suggest the options for me:

 

1. If I ask the company to wait till it approved before revoke.. Does that mean my H1B case will be cap-exempt for next H1 filing by another employer?

 

2. Can I transfer my H1 before approval to another employer based on receipt number?

 

Any other suggestions on my case will be really appreciated.

 

 

 

 

I

[rahul412]

 

1. If I ask the company to wait till it approved before revoke.. Does that mean my H1B case will be cap-exempt for next H1 filing by another employer?

 

2. Can I transfer my H1 before approval to another employer based on receipt number?

1. If its revoked after approval, then yes.

2. No without initial H1's approval you cannot file for transfer.

[Hits2910]

My situation is similar, infact my new employer's lawyer is in dilema of applying for a I797 under cap-exempt petition for me. The suggestion is that I should forefeit this H1 approval and go to the lottery next year, if I switch to employer B before october 1st. Does this make any sense.

[zl1025]

My situation is similar, infact my new employer's lawyer is in dilema of applying for a I797 under cap-exempt petition for me. The suggestion is that I should forefeit this H1 approval and go to the lottery next year, if I switch to employer B before october 1st. Does this make any sense.

Hi,

I have a similar situation. I know previously lots of people transfer H-1B before October. Do you want to share why you are in a dilema? Thank you!

[cal_new2007]

YOU do not explain anything to a licensed attorney. TO think you are qualified to do so proves you to be a poor candidate for a US job.  If you EMPLOYER wants to engage a new attorney for advice because he has lost confidence in the current one, that is up to your employer.

 

Quite frankly, this looking for a new employer and having no loyalty for the one that did your initial filing is offensive. You made a commitment and you should honor it.

 

this has nothing to do with loyalty. if someone finds a better career opportunity they have every right to take it. You talk about loyalty..where is this loyalty when companies layoff 1000's in a flash just because the CEO didn't get the extra 5 Million in bonus. I guess only H1B workers from India should be loyal right.

 

Frankly your attitude towards Indians and your condescending replies just proves how much hate and anger you have against a particular race.

 

OP asked a simple question and he had every right to seek a second opinion or provide his own opinion to the lawyer if he feels hes being misguided ( YOU DO NOT NEED A LAW DEGREE TO OFFER YOUR OWN OPINION).

 

If you go a doctor and he says you are going to die in 6 months..i bet my life you will check with another doctor . Oh but i guess you need to go to medical school to do that right! If you do not have a proper response please dont respond to queries. Get a Life t75!

[ashuneel]

t75's response has some merit as three other pple have  mentioned that they in the same situation.  that means ppl are constantly searching for jobs and need to strike a balance .