Changing Employers on H-1B

[Attorney_25]

For the next one week we will discuss issues surrounding changing employers/petitioners while in H-1B status. Please see http://www.murthy.com/worker/h1b-visa-status/ for basics surrounding H-1B status, and you also may be able to find articles specific to your concerns by using the www.Murthy.com Search Box.

 

Please post your relevant questions here.

 

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[SS23]

Hi,

I am working in Indian MNC company A and i have applied for H1B extension for 2nd time, currently it's in RFE status [Documents not yet filed with Immigration]. Meanwhile i got offer from another company B.

 

1. Can i transfer H1B to the New company B while current extension petition is in RFE stage?
2. If i move to new company B, the RFE documents wont be filed by company A. Will it create any impact in future?

Thanks!

[spawn.ajr]

Hello,

 

I was working for Company A till November 2013 on my first H1B, I joined a company B as consultant and I got a company B to file my H1B, My Company A Visa was revoked in Jan, 2014. Now, I have received receipt that USCIS has accepted Visa petition, its still in pending state. Now this week I got a full-time job in really great company C, great position and great salary. But, I doubt whether company C can apply for my H1-B transfer or extension as my company B visa transfer still in pending state. I really do not want to miss working for this company C as it is a dream company for any engineer. Can company C apply for transfer ? How can I start working for this Company C.

 

Thanks !

[techking]

Hello,

I am currently employed under Company A on H1B, Company B applied for H1B transfer and it has got approved.

My issue is .. my First name on my H1B approval copy under the Company B is incorrect. My First Name has two words and Company B had applied for my H1B transfer with only First part of my First Name and the second part of First Name is missing now in my H1B approval copy.

What is the procedure to apply for my First name corrections?

How long does it take usually?

Can i apply corrections of my First Name under premium processing?

Since my H1B transfer application is approved under Company B, Can I Start working for Company B?

If I plan to visit India while my name correction issue is under process, Does it will effect my Visa Stamping?

 

Thanks 

[Attorney_25]

In general, an extension of H-1B status changing to another H-1B employer may be filed while a person ("the beneficiary") is working in status according to the terms of an approved H-1B petition.

 

If the change of employer/extension of status (often called "H-1B transfer," although that is not a proper technical term) is filed after the beneficiary's I-94 has expired, or after the beneficiary has left the approved employer to work for another employer based on a pending H-1B petition, then generally that last COE/EOS will not be approved with I-94 unless the prior-pending petition is approved first.

 

Keep in mind that there are two aspects of an H-1B petition: 1) the petition to request H-1B classification to perform a certain job for a certain employer; 2) the request for extension of stay/extended I-94. Even if the beneficiary is not in status when the petition is filed, the petition can still be approved without the I-94. A petition approval without I-94, also known as a "consular approval," cannnot be used to immediately start working upon approval, but can be used (after leaving the US) to reenter the US in conjunction with a valid visa stamped in the passport, at which time a new I-94 will be issued authorizing work for the new employer.

 

If the beneficiary reenters the US using a previously-issued visa, he must show the new approval notice along with the old visa, and be sure that the new I-94 reflects the full period approved for the new petition. If the beneficiary does not already have a valid H-1B visa in his passport, then - generally - he must go to his home country consulate in this situation to have a new visa issued.

 

The other issue involved here is whether the beneficiary can start working for the subsequent employer as soon as the new H-1B petition is filed. This can only happen if the new petition is filed, requesting extension of stay, before the expiration of the beneficiary's I-94, and the beneficiary has not worked without authorization prior to the filing of the petition.

 

Filing the H-1B petition requesting consular processing, not extension of stay, can avoid inquiries (RFEs) from USCIS regarding the beneficiary's status, hopefully resulting in a faster approval. It is often asked in this regard if the consular petition must be counted in the current year's "cap" or "quota" in order to be approved. The answer is no, if the person has been counted against the H-1B cap within the previous 6 years (or possibly longer), then generally he is not required to be counted again.

 

Finally, SS23, if your pending petition is denied, this should technically be reported on any future H-1B petition filed for you. This shouldn't prejudice the approval of future petitions for you, unless the denial is based on there being something wrong with your qualifications, especially if USCIS has decided in the denial that you committed fraud or misrepresentation in relation to your qualifications.

[rahul1986]

Hi

 

My current H1B and I94 expired in Dec 2013. I am still under the 6 year H1B limit. The extension petition was filed and I have received the RFE. The company is yet to respond to the RFE.

 

Meanwhile I am planning to quit this job and move back to India before I hear on this petition notice.

 

Would I be eligible for a change of employer petition sometime in the future, if I intend to return to US?

 

Thanks

[Attorney_25]

...

Would I be eligible for a change of employer petition sometime in the future, if I intend to return to US?

 

...

 

I think a lot of people get confused by terminology, and they believe that whether they're subject to the cap depends on whether "extension," or "change of employer," or "new petition" is selected on the I-129 form. In fact, whatever is checked off on the second page of the I-129 form is not related to whether a person is cap-subject or cap exempt. There are other sections of the form for indicating cap-exemption.

 

So, for example, in the case of a person who has left the US, "new petition" would have to be selected on page 2 of the I-129. Selecting this does not make the beneficiary subject to the cap. Also, it doesn't matter whether the petition is being filed by a previous H-1B employer or a new employer.

 

In general, a person can be considered to be exempt from the cap if he has been counted against the cap within the previous 6 years, with date of being counted being the date of approval of the cap-subject petition. In some cases, such as successive extensions, USCIS considers a person exempt from the cap even though they were last counted more than 6 years previous.

 

In the case of a person who has left the US, the safest bet is to have the new petition filed within 6 years of the date of approval of the cap-subject petition, even though USCIS may consider them still exempt after that 6 year mark.  A more detailed discussion of this issue (the 6 year mark in cap-exemption) can be found at http://forum.murthy.com/index.php?/topic/71540-h-1b-cap-issues/page-2#entry280015.

[rahul1986]

 Also, it doesn't matter whether the petition is being filed by a previous H-1B employer or a new employer.

 

 

Thank you for the prompt reply. My concern was more related to the fact that I may be leaving US on an expired I-94 and an under consideration petition which may be withdrawn by this employer. Does this have any adverse impact on any future petitions?

 

Regards

[concerned24]

Hi,

I am in my 8th year of H-1B visa based on approved I-140 application (PERM and I-140 were filed in 6th year of H-1B visa).

Is it possible for me to change jobs?

What does the new employer have to do to transfer the H-1B visa and pending GC application?

Thanks for your time.

[ashlal]

Hi

I am currently on a cap exempt H1-B valid until january 2017. I have found a different job and that new employer will be filing my first cap subject H1-B on my behalf on April 1st, 2014. I will continue working at the cap exempt H1-B current job till sep 30th, 2014. Will it be okay if I travel for 3 weeks between end of April and May 15th when my cap subject h1-b application is filed. Will this cause any issues? Thanks for your help!

[Nbandari]

Greetings

 

I got my I 140 approved in 6th year from company A and got 3 yrs H1 till 2016. 

After a year I joined company B with a GC process promise, 

I am not seeing good prospects with Company B in GC process and Company A revoked my I 140 as a policy. 

Now I wanna move to a new place where I found company C which is ready to transfer H1 and start PERM 

as soon as I join, we just found out that I 140 from company A is revoked (after 1 year of approval). 

My H1 is with B valid till June 2016.

 

Now I am in 8th year.

 

1. Is it possible to get H1 transfered?

2. If my trasnfer of H1 gets rejected with C, will I lose the H1 with B also?

3. If 1 is possible, is premium a better way or normal H1 transfer?(company C was saying this way we can buy time)?

 

Suggest please

 

-Jay

[kc21]

Hi,

 

Scenario: 

   Am currently on H1-B with company A. I am looking to join company B in India, which has a strong US presence. Now, company B is exploring the option of having me spend some time (1 month) in the US to familiarize myself with the processes/systems. Among these options, which one is more apt -

1. Transfer H1-B from Company A to Company B and then shift to India ? My I140 is in approved stage
2. Convert H1-B to B1 visa ?
   • Is this any faster than H1B to H1B transfer?
   • Can one get a H1B to B1 visa transferred without having to leave the country?

3. Quit company A and join company B without an H1 transfer?

   • Is this allowed or ok for a short duration like 1 month?
4. Any other option?

 

Any pointers will be really helpful

 

Thanks. 

[Attorney_25]

Leaving US on expired I-94 with extension pending and effect on future petitions:

When an extension is timely-filed, i.e. filed prior to I-94 expiration of the previous petition, time after I-94 expiration while the petition is pending is considered an authorized period of stay. Merely departing the US while the petition is pending does not cause a problem in this regard. If the extension had been filed after I-94 expiration, i.e. untimely, then departing while the extension is pending and then having the extension request withdrawn by the employer would cause all time after I-94 expiration to be considered “unlawful presence,” accruing time toward the 3/10 year bars.

 

Changing employers after 6^th year based on I-140 approval/I-140 approval revoked:

A new employer can use an I-140 approval of a prior employer to file an H-1B extension of three years. The employer only needs to include a copy of the I-140 approval notice and to request the three years based on that.

 

If the I-140 is withdrawn/revoked prior to the approval of the H-1B extension, the H-1B extension likely will be denied. While normally a beneficiary can work for the new petitioning employer while the petition is pending, note that AC21 requires the qualifying petition to be “nonfrivolous.” Therefore, an extension filed based on an I-140 approval that has been revoked, being a frivolous request, will not afford AC21 work authorization with the new employer.

 

If the I-140 is withdrawn/revoked after the approval of the H-1B extension, then this will not affect the approved H-1B.

 

A possible solution to the situation of having the I-140 revoked and needing to change employers is for the new employer to start a new labor certification process. The new employer can start the new GC process before they hire the beneficiary. Therefore, for example, the beneficiary can continue in employment on Employer B’s H-1B petition while Employer C starts the GC process. Once the labor certification has been pending 365 days, Employer C can use it for a one year extension/change of employer from B to C.   Or if a new I-140 is approved by then, then a three-year extension can be had.

 

There may be a gap in status where the beneficiary either has to leave the US or change to another status such as B-2 or H-4. These one-year or three-year “extensions” can be obtained, when the GC process has progressed enough, while the beneficiary is outside the US, through a “consular” petition, or as a change of status from another status.

 

Effect of change of employer denial on existing approved petition:

The denial of an H-1B change-of-employer petition does not void the existing H-1B. However, if the beneficiary has already left employer A, which holds the approved petition, and moved to employer B while employer B’s petition is pending, then employer A has probably notified USCIS of the beneficiary’s departure (as doing so is required by the regulations) and USCIS has probably taken steps to revoke employer A’s H-1B petition. Once USCIS revoked employer A’s H-1B petition, employer A cannot use the petition to employ the beneficiary.

 

If for some reason employer A has not notified USCIS of the beneficiary’s departure or requested revocation of the petition, then it is possible to go back into employment with employer A.

 

Traveling while moving from cap-exempt to cap-subject:

In general, travel while an extension of status is pending does not void the extension of status request. This is also true of moving from one, cap-exempt, H-1B employer to another, cap-subject, H-1B employer, because the same status, i.e. H-1B, is being extended.

 

This is different from a change of status situation, e.g. F-1 to H-1B, where the change of status/extension of stay (I-94 extension) request is considered abandoned, and thus the H-1B petition could be approved but without I-94, and it may be necessary to leave the US again, get a visa and come back, or have an amended H-1B petition filed to effectuate that H-1B petition.

 

In the H-1B to H-1B situation, the beneficiary could travel while the extension is pending, come back on the exempt H-1B to continue working based on that, and whether the new H-1B petition is approved while the person is traveling or after he returns, the I-94 on the new (cap-subject) H-1B petition is considered to take effect on the October 1 start date of the cap-subject petition and supersedes the prior (cap-exempt) I-94.

 

Note that returning on the exempt H-1B petition after October 1 would theoretically cause the exempt-H-1B I-94 to supersede the cap-subject I-94.

 

It is advisable when traveling while any petition or application is pending, to strategize that travel with a qualified immigration attorney and determine the possible effects in your specific case.

 

Timing of moving to a new short-term employer – H-1B, B-1, etc.:

Whether H-1B or B-1 is selected depends on the particular work being done. It is likely that B-1 is appropriate for studying a system. However, the beneficiary could not start engaging in the B-1 activities until the B-1 application actually is approved. Timing for the approval of the B-1 is not completely predictable, but will probably be about 2.5 to 4 months.

 

An H-1B petition would be slightly more time-consuming and significantly more expensive to prepare and file; however, the beneficiary could start working under the pending H-1B petition as soon as it is filed. Therefore, the H-1B petition would probably be more conducive to a quick move. This theoretically could be done in under 2 weeks, or less if the employer already has an appropriate LCA available for the particular position and location.

 

It generally would not be appropriate to start working for the new employer without having that employer first file an H-1B petition. A possible exception is where the current H-1B employer outsources the employee to the new employer. However, the new assignment would need to be in compliance with all the terms of the existing H-1B petition. In addition, USCIS recently has stated that they want to see the existing H-1B employer file an amended petition, even where all the terms of employment do not change from the existing petition, if the beneficiary is being assigned to a new “end client.” Even so, it would be less expensive for the existing employer to file an amended petition than for the new employer to file a change-of-employer petition.

[Sapna P]

Hi,

 

My husband and I work for the same company. He is on L1 and I am on L2. Our company wants to file for H1. If I file for H1 and get it, can my husband retain his L1 and continue to work? Or will he be moved to H4?

 

Thanks,

 

[Nbandari]

Leaving US on expired I-94 with extension pending and effect on future petitions:

When an extension is timely-filed, i.e. filed prior to I-94 expiration of the previous petition, time after I-94 expiration while the petition is pending is considered an authorized period of stay. Merely departing the US while the petition is pending does not cause a problem in this regard. If the extension had been filed after I-94 expiration, i.e. untimely, then departing while the extension is pending and then having the extension request withdrawn by the employer would cause all time after I-94 expiration to be considered “unlawful presence,” accruing time toward the 3/10 year bars.

Changing employers after 6^th year based on I-140 approval/I-140 approval revoked:

A new employer can use an I-140 approval of a prior employer to file an H-1B extension of three years. The employer only needs to include a copy of the I-140 approval notice and to request the three years based on that.

If the I-140 is withdrawn/revoked prior to the approval of the H-1B extension, the H-1B extension likely will be denied. While normally a beneficiary can work for the new petitioning employer while the petition is pending, note that AC21 requires the qualifying petition to be “nonfrivolous.” Therefore, an extension filed based on an I-140 approval that has been revoked, being a frivolous request, will not afford AC21 work authorization with the new employer.

If the I-140 is withdrawn/revoked after the approval of the H-1B extension, then this will not affect the approved H-1B.

A possible solution to the situation of having the I-140 revoked and needing to change employers is for the new employer to start a new labor certification process. The new employer can start the new GC process before they hire the beneficiary. Therefore, for example, the beneficiary can continue in employment on Employer B’s H-1B petition while Employer C starts the GC process. Once the labor certification has been pending 365 days, Employer C can use it for a one year extension/change of employer from B to C. Or if a new I-140 is approved by then, then a three-year extension can be had.

There may be a gap in status where the beneficiary either has to leave the US or change to another status such as B-2 or H-4. These one-year or three-year “extensions” can be obtained, when the GC process has progressed enough, while the beneficiary is outside the US, through a “consular” petition, or as a change of status from another status.

Effect of change of employer denial on existing approved petition:

The denial of an H-1B change-of-employer petition does not void the existing H-1B. However, if the beneficiary has already left employer A, which holds the approved petition, and moved to employer B while employer B’s petition is pending, then employer A has probably notified USCIS of the beneficiary’s departure (as doing so is required by the regulations) and USCIS has probably taken steps to revoke employer A’s H-1B petition. Once USCIS revoked employer A’s H-1B petition, employer A cannot use the petition to employ the beneficiary.

If for some reason employer A has not notified USCIS of the beneficiary’s departure or requested revocation of the petition, then it is possible to go back into employment with employer A.

Traveling while moving from cap-exempt to cap-subject:

In general, travel while an extension of status is pending does not void the extension of status request. This is also true of moving from one, cap-exempt, H-1B employer to another, cap-subject, H-1B employer, because the same status, i.e. H-1B, is being extended.

This is different from a change of status situation, e.g. F-1 to H-1B, where the change of status/extension of stay (I-94 extension) request is considered abandoned, and thus the H-1B petition could be approved but without I-94, and it may be necessary to leave the US again, get a visa and come back, or have an amended H-1B petition filed to effectuate that H-1B petition.

In the H-1B to H-1B situation, the beneficiary could travel while the extension is pending, come back on the exempt H-1B to continue working based on that, and whether the new H-1B petition is approved while the person is traveling or after he returns, the I-94 on the new (cap-subject) H-1B petition is considered to take effect on the October 1 start date of the cap-subject petition and supersedes the prior (cap-exempt) I-94.

Note that returning on the exempt H-1B petition after October 1 would theoretically cause the exempt-H-1B I-94 to supersede the cap-subject I-94.

It is advisable when traveling while any petition or application is pending, to strategize that travel with a qualified immigration attorney and determine the possible effects in your specific case.

Timing of moving to a new short-term employer – H-1B, B-1, etc.:

Whether H-1B or B-1 is selected depends on the particular work being done. It is likely that B-1 is appropriate for studying a system. However, the beneficiary could not start engaging in the B-1 activities until the B-1 application actually is approved. Timing for the approval of the B-1 is not completely predictable, but will probably be about 2.5 to 4 months.

An H-1B petition would be slightly more time-consuming and significantly more expensive to prepare and file; however, the beneficiary could start working under the pending H-1B petition as soon as it is filed. Therefore, the H-1B petition would probably be more conducive to a quick move. This theoretically could be done in under 2 weeks, or less if the employer already has an appropriate LCA available

[Nbandari]

If the I-140 is withdrawn/revoked after the approval of the H-1B extension, then this will not affect the approved H-1B.

I got the h1b extension till 2016 and my 140 got revoked. Now I want transfer the same h1 till 2016, which was approved. Would it be same?

[charankutti]

I am on H1b and my extension was applied on 30-Jul-2013. I visa/Petition expired on 07-Sep-2013. It is still pending for approval.

Now Can I applly for a H1B transfer with a different employer ? Or do I need to wait till I get the extension.

 

Thanks

[Attorney_25]

Husband and wife - different statuses:

Husband and wife can have different principal statuses, e.g. H-1B and L-1B. It would not be possible for the principal on L-1 to change to H-1B and leave the dependent on L-2, but that is not the situation here. The L-2 dependent spouse can change to H-1B without affecting the L-1 spouse.

 

Changing H-1B employers post-6-years and I-140 revoked:

Even if the petition with the current employer already is approved for an extensive period in the future, a subsequent petition by the same or a new employer will not inherit that extended period. Each H-1B petition must qualify on its own. Therefore, the new "transfer" [not a correct technical term] petition must have a valid I-140 approval on which to base any validity period at all, and if the I-140 is already revoked then this cannot be had.

 

It seems people get confused with terminology and think a "transfer" is transferring the same petition to a new employer, but that is not the case. Each time an employer files a petition, it is a separate petition and the only way it depends on the previous petition is that generally it should be filed before the previous petition expires, in order to obtain an extension of stay/I-94 extension. I'm not really sure from where this misunderstanding arises. Please post again if this is not clear to you.

 

Changing H-1B Employers while Extension is Pending

In order to receive an extension of stay in the US, or to take advantage of AC21 H-1B portability, the new employer's petition must be filed before the expiration of the prior period of stay, delimited by the I-94. In the case where the I-94 is expired and extension is pending, that pending extension must be approved in order for the petition by the new employer to be approved with I-94. If the pending extension is not approved, the new employer's petition can still be approved, but it will be without I-94 and the beneficiary will need to leave the US and reenter on a valid visa. If the beneficiary already has an unexpired H-1B visa based on a prior employer's petition, that visa can be used to enter the US when presented with the new I-797 petition approval notice. *It is important to present both and to check your online I-94 as soon as possible to make sure that it was issued for the entire validity period of the new petition.* If the beneficiary does not have a valid visa, then he will need to obtain one in his home country in order to reenter the US and receive an I-94 granting H-1B status.

 

It actually is possible for the new employer's petition to be filed while the extension with the prior employer is pending, but depends on the pending extension being approved first, in order to have the new employer's petition approved with I-94.

[Attorney_25]

 

What is the procedure to apply for my First name corrections?

If incorrect information was provided on the I-129 form, then an amended petition must be filed. It may take 3 - 4 months, or premium processing can be used.

 

If the information was correct on the forms sent to USCIS and USCIS made the mistake, the petitioner should be able to get it corrected through a call to the 1-800 number and an amended approval may take only a couple weeks.

[divyay]

Hello Sir,

 

I'm Presently holding an F 1 and will be applying for a H 1B this year and I have my CPT too.This being my second masters I wont be having an OPT

My question is if my H 1 is rejected will it effect my CPT and F 1 status.

Can I continue going to school and work (on CPT) and apply for H 1 next year 

[rahul412]

Hello Sir,

 

I'm Presently holding an F 1 and will be applying for a H 1B this year and I have my CPT too.This being my second masters I wont be having an OPT

My question is if my H 1 is rejected will it effect my CPT and F 1 status.

Can I continue going to school and work (on CPT) and apply for H 1 next year 

It shouldn't effect your F1 but it depends on what kind of CPT work you are doing on F1??

[Attorney_25]

Denial of COS to H-1B generally will not affect the current status, i.e. F-1 and CPT.

 

EDIT: Of course the exception to most general statements is where USCIS finds there is something wrong with the prior status, but in such cases if they want to revoke the prior status they need to first send a notice of intent to revoke.

[Nbandari]

 

Changing H-1B employers post-6-years and I-140 revoked:

Even if the petition with the current employer already is approved for an extensive period in the future, a subsequent petition by the same or a new employer will not inherit that extended period. Each H-1B petition must qualify on its own. Therefore, the new "transfer" [not a correct technical term] petition must have a valid I-140 approval on which to base any validity period at all, and if the I-140 is already revoked then this cannot be had.

 

It seems people get confused with terminology and think a "transfer" is transferring the same petition to a new employer, but that is not the case. Each time an employer files a petition, it is a separate petition and the only way it depends on the previous petition is that generally it should be filed before the previous petition expires, in order to obtain an extension of stay/I-94 extension. I'm not really sure from where this misunderstanding arises. Please post again if this is not clear to you.

 

 

Thank You sir, before getting your response, I took phone consultancy with one of the seniors at your firm and it was suggested that we can still get the H1 with change of employers till the existing end date instead of extension. Now I am confused after readind this. Please help.

 

-Jay

[H1transferp]

My H1b was originally filed by company A and I worked with company A in US for 1.5 yrs.

 I have recently (Nov 2013 ) got it transferred with company B and got approval for 1 yr from USCIS. It is valid till Nov 2014.I have not worked in US on the company B petition yet.I have the company A I-979 . 

Company B is not sharing the I-979.I have got the very good offer from comnay C.

I just wanted to know , in case if the Company B petition is not available, is it possible to again transfer the A petition to C.

Please let me know if you need any further information.

[Attorney_25]

Filing of 2nd Change of Employer Petition, While Continuing to Work with Original H-1B Employer:

 

The approval of a change of employer petition does not void the prior H-1B approval. In fact, both approved petitions are vald until expired/withdrawn/revoked. In addition, the approval of a change of employer petition does not obligate the beneficiary to move to the new employer. Failing to work on this subsequent approved petition is not a violation of status as long as the beneficiary continues to work according to the terms of the previous approved petition. Thus, if the beneficiary does not start working according to the second approved petition, that petition becomes irrelevant to the beneficiary, in terms of immigration status. The second employer will probably request revocation of the approved petition fairly quickly, as failure to join is a change in conditions of which USCIS requires they be notified, and upon such notification they will move to revoke the petition approval. Again, as long as there is another approved petition that he is working on, this does not affect the beneficiary.

 

As such, when then a third employer wants to file a change of employer petition and the beneficiary is still working for the first employer, the change is from employer 1 to employer 3. Employer 2's petition is for practical purposes irelevant (as long as there was nothing in that petition that reflects on the approvability of another petition, such as fraud by the beneficiary).