Jump to content
All posts are moderated, so it will take time for your post to appear!
Search In
  • More options...
Find results that contain...
Find results in...
ash6633

H1b with consultancy or client?

Recommended Posts

I am working for client (ABC) through my employer (xyz). If i file H1(premium) through my employer. can i transfer it to client in the month of june or may end? since client is ready to offer me full time.

Share this post


Link to post

That would invalidate the H1, since the employer is required to inform USCIS if you no longer work there.

Since the client already knows you, why won't they just hire you now and file an H1 for you?

Share this post


Link to post

I am working for client (ABC) through my employer (xyz). If i file H1(premium) through my employer. can i transfer it to client in the month of june or may end? since client is ready to offer me full time.

So why consultancy when you have a full time offer?? H1 with consulting firms is very risky.

Share this post


Link to post

If OP's H1b is approved, why he cannot change his employer in May/ June?

OP's new employer can file H1b transfer (cap exempted H1b) in PP, and later he can leave his current employer. I don't see any issue in this?

Also, there may be various reasons why OP's client is not interested in offering full-time job to him. May be budget, project time-line, reluctant to file 'new' H1b, contract with his current employer etc.

Share this post


Link to post

they just offered me full time and they need three weeks for BG check.

On top of it i have a OPT extension which will be starting on June.

My question would be will my client able to transfer after i get my H1 approved and not stamped?

Share this post


Link to post

If OP's H1b is approved, why he cannot change his employer in May/ June?

OP's new employer can file H1b transfer (cap exempted H1b) in PP, and later he can leave his current employer. I don't see any issue in this?

Also, there may be various reasons why OP's client is not interested in offering full-time job to him. May be budget, project time-line, reluctant to file 'new' H1b, contract with his current employer etc.

 

The rule is that if a new H1 is revoked before the October start date, it would be invalid and go back to the pool of H1s.

And an employer is required by law to inform USCIS if the person is no longer working there.

Share this post


Link to post

"My question would be will my client able to transfer after i get my H1 approved and not stamped?"

 

Once your H1b is approved by your current employer, your new employer (client) should be able to transfer it (filing cap exempted H1b).

Visa is a totally irrelevant to H1b status. Visa is an entry document, which is only required while entering in USA not for H1b transfer. 

Share this post


Link to post

"My question would be will my client able to transfer after i get my H1 approved and not stamped?"

 

Once your H1b is approved by your current employer, your new employer (client) should be able to transfer it (filing cap exempted H1b).

Visa is a totally irrelevant to H1b status. Visa is an entry document, which is only required while entering in USA not for H1b transfer. 

On two conditions:

(1) A cap exempt H1B petition is filed after Oct 1st.

(2) H1B approved employer does not withdraw or revoke H1B petition before Oct 1st.

 

I believe if either of the condition is breached the interpretation of USCIS will be that a H1B job did not exist at the time of H1B filing with H1B approved employer.

Share this post


Link to post

On two conditions:

(1) A cap exempt H1B petition is filed after Oct 1st.

(2) H1B approved employer does not withdraw or revoke H1B petition before Oct 1st.

 

I believe if either of the condition is breached the interpretation of USCIS will be that a H1B job did not exist at the time of H1B filing with H1B approved employer.

This is wrong info.

H1b transfer can be done before Oct 1st too. As long as H1b is approved, it is good to transfer.

New employer can file cap exempted H1b based on original H1b. Once this cap exempted H1b is approved, OP will resign. Now ex employer revoke their H1b before or after Oct 1st, not going to hurt OP.

 

Reference: This expert is from famous law firm (can't share link here):

"To add to the previous answer, if you are approved and counted against the cap, you can file another H1B through a new employer before 10/1 but 10/1 is still the earliest you can start at any cap subject employer."

Share this post


Link to post

This is wrong info.

H1b transfer can be done before Oct 1st too. As long as H1b is approved, it is good to transfer.

New employer can file cap exempted H1b based on original H1b. Once this cap exempted H1b is approved, OP will resign. Now ex employer revoke their H1b before or after Oct 1st, not going to hurt OP.

 

Reference: This expert is from famous law firm (can't share link here):

"To add to the previous answer, if you are approved and counted against the cap, you can file another H1B through a new employer before 10/1 but 10/1 is still the earliest you can start at any cap subject employer."

No, that is not the case. USCIS will deny any petition filed before Oct 1st. I would suggest OP to talk to a good attorney and post attorney's view.

Share this post


Link to post

This is wrong info.

H1b transfer can be done before Oct 1st too. As long as H1b is approved, it is good to transfer.

New employer can file cap exempted H1b based on original H1b. Once this cap exempted H1b is approved, OP will resign. Now ex employer revoke their H1b before or after Oct 1st, not going to hurt OP.

 

Reference: This expert is from famous law firm (can't share link here):

"To add to the previous answer, if you are approved and counted against the cap, you can file another H1B through a new employer before 10/1 but 10/1 is still the earliest you can start at any cap subject employer."

This info is from a good attorney's office too.

 

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

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.

Share this post


Link to post

We have received approval of a new change of status from F-1 to H-1B filed before October 1st with a new employer. We cited the 06/19/2001 Cronin Memo stating that because the worker has been counted once toward the FY2015 numerical limit and is the beneficiary of an approved petition, he is exempt from the H-1B cap. There was an RFE on the case, but it did not raise the issue of cap exemption.

However, recent Requests for Evidence from USCIS in the exact same situation appear to follow a different interpretation prohibiting the employee from taking advantage of the first approval prior to October 1st. Here is what an actual RFE says:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.”

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC********** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed.

Share this post


Link to post

"Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed."

 

Looks like something changed recently. As suggested better to stay away from this grey area. Or, talk to an attorney and update here. 

Share this post


Link to post

"Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed."

 

Looks like something changed recently. As suggested better to stay away from this grey area. Or, talk to an attorney and update here. 

Yes, that is the information I gathered about this scenario. I believe this was the interpretation from 2014. I might be wrong. OP talk to a good attorney and update us.

Share this post


Link to post

"Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed."

 

Looks like something changed recently. As suggested better to stay away from this grey area. Or, talk to an attorney and update here. 

Yes it changed last year. That's why it is a good idea to stay up-to-date.

It is not a gray area. If the petition is revoked before Oct. 1, the H1 is gone.

Share this post


Link to post

I am planning to switch employer only after H1 transfer is approved.

so that I will be counted under cap right? 

Yes, provided the initial cap subject H1B petition is not revoked by employer before Oct 1st.

Share this post


Link to post

You will join the new employer after H1b approval only to avoid any risk. Suppose you joined new employer and your H1b got rfe and then failed, you will be out of status, and would have to leave USA. If you are counted once towards H1b quota, you are cap exempted for 6 years of H1b stay in USA.

Share this post


Link to post

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×