H1B Transfer before Oct 1 from outside US; New Regulation from USCIS

SriRamSS

By SriRamSS,
in H1B : Portability Issues

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SriRamSS Member

SriRamSS

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H-1B Transfer before Oct 1st maybe a risky thing, as I heard from a couple of attorneys of prospective employers that a new regulation has been effected by USCIS in May 2014 particularly around H-1B transfer. How far is this true? 

My scenario & the question in short is: I've an approved H1B petition, filed and approved this year by A. I've a copy of the approval notice with me. I've not gone for stamping yet. I've never been to the US in H-1B or L-1. Can H-1B transfer be done before Oct 1st?

 

An immigration attorney says:

"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 (transfer) 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."

 

Another one from a different immigration law firm quotes:

"In a May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:

If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap."

... meaning:

"If Company A’s approved petition is withdrawn before the new petition with Company B is approved, then the individual would no longer be considered “counted” under the cap.

The new petition would be denied for filing outside of the H-1B cap window."

 

The confusion still prevails, as there's no evidence or documentation pertaining to this in the USCIS website. Different attorneys have different views!! 

Is anyone aware of this 'new' rule/regulation by USCIS? It would be great if you can throw more light on this gray area. 

Thanks in advance!

 

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SriRamSS Member

SriRamSS

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H-1B Transfers are still possible after Oct 1st. This is not a new rule, but a different interpretation of the extant rules.

 

USCIS (probably) wants to ensure that the all transfers be done after its effective date of Oct 1st. So, if the original petitioner revokes the application before Oct 1st, then the H-1B itself will become void - and the beneficiary cannot avail of cap-exempt petitions anymore with this receipt number!!

 

There have been cases even this year who were able to get transfers before Oct 1st. I'm not sure what 'other' criteria is being taken into consideration for scrutinizing transfer petitions before Oct 1st.

 

This interpretation is being tagged as incorrect or unfair by a group of attorneys within AILA.

 

Except during the breathing gap (till the effective date), H-1B transfers will still go on!! H-1B transfer is one great way for USCIS to make money - especially the freedom that multiple employers can file transfer petitions simultaneously (and there's no limit to the total transfer applications that can be filed).

When employers don't care about their perm staff and fire them with just hours of notice (I've seen this in many of the investment banks where I worked in the US, UK and Singapore); I don't think there's anything wrong in going behind multiple employers, and asking them to file a transfer, and later decide whether to join them or not!!
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SriRamSS Member

SriRamSS

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It was possible earlier - not anymore. The condition, a corollary to the new interpretation of USCIS, is that the original petitioner should not withdraw the petition before Oct 1st - and that is the whole point of this post!

 

I'm sure this move by USCIS is only for their administrative easiness - to prevent employers from flooding USCIS with transfer petitions as soon as the first approval is done.

 

Otherwise, this isn't intended to stop / prevent H-1B transfers from outside / inside US before / after stamping.

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  • 1 year later...
sexy777 Member

sexy777

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If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap

 

What to conclude from this?

1).cap exempted if stamped

2).cap exempted if stamped & pay stubs

 

I came across this story 

http://forum.murthy.com/index.php?/topic/96227-visa-transfer-from-india/?hl=transfer

 

I am really confused , what I can make of is - cap exemption requires a successful consular processing (visa stamp) & further needs valid(un-revoked) h1b at the time transfer?

 

Correct me If I am wrong

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