H1B Transfer & H1B Amendment Parallel Application

[victor_26]

Hi Friends,

Below is question I have on the H1B Amendment and H1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H1B Amendment is in light of the new H1B regulation that has been mandated by USCIS when there is a significant change in the Job Location of the beneficiary from the address mentioned in the initial Petition from the employer which was approved initially.

1. Does the USCIS Last action rule apply in case of the below 2 being applied almost at the same time for the same beneficiary?
a) H1B Amendment with Current Employer
b) H1B Transfer to New employer while H1B Amendment is pending with Current Employer.

2. If the answer for the above is 'Yes', then incase the H1B Amendment Approval comes after the H1B Transfer would the H1B transfer to the new employer that was approved earlier be automatically nullified?

3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H1B amendment to dictate the latest H1B for a given employer? (I believe we can request USCIS to withdraw/cancel the Amendment but is this something that the new employer/employee can do or only the existing employer who was filed for H1B amendment has the authority to request any cancellation/withdrawal of the H1B amendment?)

4. Also does the current suspension of H1B premium processing apply even for the H1B transfers (with a new extension for 3 Years) or is it only for new H1B extensions of Petitions from the current employer?

Thanks a lot for your help.

[livliv]

Last action rule is irrelevant here. In case of H1B transfer, technically there is no transfer, it is just a new cap-exempt petition. So even after transfer is approved, you can remain with the previous employer and never join the new employer.

[arvind_shanbhag]

My last date with current employer A is June 26th (Got laid off and they will put a request to revoke my H1B on June 27th), although got an offer last week and the new Employer B, their policy is to allow an employee start work only after H1B is approved and not on the receipt (estimated start date on the offer letter will be August 5th, as they would apply for premium processing on July 27th once PP opens up).

 

I have negotiated with employer B to ensure once the offer letter is issued this week (on 6/18) & signed (estimated latest by Thursday, 6/18), they will apply for my transfer petition before June 26th. Keeping fingers crossed! 

 

Question- 

 

- should I be legally okay to stay in the country with the receipt number & offer letter (between June 27th to Aug 5th or 19th), so I will NOT have to travel outside the US. Can someone please confirm?

 

- and/Or should I request them to apply a transfer in PP without extension (prior to June 26th) and do you think it will be accepted with the new rule in place on H1B PP ceased for extensions, but PP as a transfer and not an extension - will that work ? 

 

Thanks, 

[livliv]

 

My last date with current employer A is June 26th (Got laid off and they will put a request to revoke my H1B on June 27th), although got an offer last week and the new Employer B, their policy is to allow an employee start work only after H1B is approved and not on the receipt (estimated start date on the offer letter will be August 5th, as they would apply for premium processing on July 27th once PP opens up).

 

I have negotiated with employer B to ensure once the offer letter is issued this week (on 6/18) & signed (estimated latest by Thursday, 6/18), they will apply for my transfer petition before June 26th. Keeping fingers crossed! 

 

Question- 

 

- should I be legally okay to stay in the country with the receipt number & offer letter (between June 27th to Aug 5th or 19th), so I will NOT have to travel outside the US. Can someone please confirm?

 

- and/Or should I request them to apply a transfer in PP without extension (prior to June 26th) and do you think it will be accepted with the new rule in place on H1B PP ceased for extensions, but PP as a transfer and not an extension - will that work ? 

 

Thanks, 

 

As long as USCIS receipt date for the petition is before last day of work, you can remain in the US without working. Even a few days gap between the two can be okay.

Also, request your current employer to hold off the revocation for a month or so. They can I think do it within 30 days.

[victor_26]

Last action rule is irrelevant here. In case of H1B transfer, technically there is no transfer, it is just a new cap-exempt petition. So even after transfer is approved, you can remain with the previous employer and never join the new employer.

 

Does the last action rule not apply even if the amendment and transfer are both based on the approved 140? i.e the applicant is already past 6 years and his previous extension was based on the approved 140.

 

Thanks,

[livliv]

Does the last action rule not apply even if the amendment and transfer are both based on the approved 140? i.e the applicant is already past 6 years and his previous extension was based on the approved 140.

 

Thanks,

 

More information is needed.

[livliv]

Does the last action rule not apply even if the amendment and transfer are both based on the approved 140? i.e the applicant is already past 6 years and his previous extension was based on the approved 140.

 

Thanks,

 

Yes, same answer.

Last action taken on the I-140 matters in this case, which is approval. However, if I-140 is revoked, that will be the last action.

[KamalPalanisamy]

Hi Livliv,

 

First of all would like to convey my thanks for this informative article.  Have a question, will elaborate little about my scenario:

 

I have worked for employer ‘A’ and got my H-1 stamped in passport till Sep 2015.

 

In October 2014, have transferred my H1 to employer ‘B’ and initial petition was filed for location ‘A’ and approved along with valid I-94 till Jan 2017. I have moved to location ‘B’ for employer ‘B’ on Oct 2014, so amendment has been filed with USCIS for location ‘B’ on June 2015 as per new USCIS rules and it is in ‘Pending’ Status till now.

 

Currently, I got good offer with Employer ‘C’ who is willing to H1-Transfer. Below are my questions:

 

1. Assume that if I join Employer 'C' after H1 transfer approval, at same time amendment is pending with employer 'B'.  Later after few months amendment is getting denied with Employer 'B' ? Will this 

cancel my transfer petition with Employer 'C' as per "Last action Rule"/ "Break of bridge petition" ?      In this case will I be able to work for Employer 'C' by maintaining valid H1 Status?

 

2. If I start to work for Company ‘C’ after my H1 transfer to employer ‘C’ is approved and my amendment got denied later. Then if I go to india for stamping for Company ‘C’, will it create any problem in stamping?

 

3. If amendment gets approved after I start working for company 'C'(assume transfer got approved earlier than amendment).  Then will it impact my H1 Status?

 

Please provide your valuable inputs.

[jairichi]

 

Hi Livliv,

 

First of all would like to convey my thanks for this informative article.  Have a question, will elaborate little about my scenario:

 

I have worked for employer ‘A’ and got my H-1 stamped in passport till Sep 2015.

 

In October 2014, have transferred my H1 to employer ‘B’ and initial petition was filed for location ‘A’ and approved along with valid I-94 till Jan 2017. I have moved to location ‘B’ for employer ‘B’ on Oct 2014, so amendment has been filed with USCIS for location ‘B’ on June 2015 as per new USCIS rules and it is in ‘Pending’ Status till now.

 

Currently, I got good offer with Employer ‘C’ who is willing to H1-Transfer. Below are my questions:

 

1. Assume that if I join Employer 'C' after H1 transfer approval, at same time amendment is pending with employer 'B'.  Later after few months amendment is getting denied with Employer 'B' ? Will this 

cancel my transfer petition with Employer 'C' as per "Last action Rule"/ "Break of bridge petition" ?      In this case will I be able to work for Employer 'C' by maintaining valid H1 Status?

 

2. If I start to work for Company ‘C’ after my H1 transfer to employer ‘C’ is approved and my amendment got denied later. Then if I go to india for stamping for Company ‘C’, will it create any problem in stamping?

 

3. If amendment gets approved after I start working for company 'C'(assume transfer got approved earlier than amendment).  Then will it impact my H1 Status?

 

Please provide your valuable inputs.

 

 

1. In that case you need to exit and enter US with a valid H1B visa and C's I797 to continue working for C.

2. Refer 1.

3. No.

[KamalPalanisamy]

Hi Jairichi,

 

Thanks for the quick response. In the above chain, seeing that H1 transfer and H1 amendment are different process, where last action rule/bridge petition is not applicable.  Please clarify whether I am missing something here.

 

 

For question #1: Assume that if I join Employer 'C' after H1 transfer approval, at same time amendment is pending with employer 'B'.  Later after few months amendment is getting denied with Employer 'B' ? Will this 

cancel my transfer petition with Employer 'C' as per "Last action Rule"/ "Break of bridge petition" ?      In this case will I be able to work for Employer 'C' by maintaining valid H1 Status?

 

        In this case, should I need to exit and enter US to work for Company 'C', though I have valid I-94 with expiry date as Jan 2017 ? Is there any alternative?

 

 

Please bare with me for double checking it, want to clarify the question.  Appreciate your response.

[KamalPalanisamy]

Hi Jai,

 

Thanks for the quick response. In the above chain, seeing that H1 transfer and H1 amendment are different process, where last action rule/bridge petition is not applicable.  Please clarify whether I am missing something here.

 

 

For question #1:

1. Assume that if I join Employer 'C' after H1 transfer approval, at same time amendment is pending with employer 'B'.  Later after few months amendment is getting denied with Employer 'B' ? Will this 

cancel my transfer petition with Employer 'C' as per "Last action Rule"/ "Break of bridge petition" ?      In this case will I be able to work for Employer 'C' by maintaining valid H1 Status?

 

    In above case, Should I need to exit and enter US to work for Company 'C', though I have valid I-94 with expiry date as Jan 2017 ? Or do I have some alternative?

 

Please advise.

[KamalPalanisamy]

Hi Jai/livliv,

 

I am in critical situation, any small information and advise would be very helpful.

 

Thanks.

[SalviS]

Hi,

Below is a question  i have :

I filed for a H1B transfer via employer A last week(with an LCA for a Texas location). It is an EVC(Employer-Vendor-Client) model. I started my new job this week at the Texas location on H1B receipt.

After joining, my employer said that i have an option of working from another office location in Georgia, which i prefer as i have my family there. But me taking up that location option would require a H1B ammendment to be filed. 

So , i need to know if i can file for an ammendment immediately while my H1 transfer is in process or do i have to wait for the transfer to be approved and only then apply for an ammendment?

Please note that my employer,vendor and client is the same, just my office location would change.

Any advice would be greatly appreciated.

Thanks!

[Kit]

Palanisamy - can you tell me what happened in your case ?

i am in similar situation, kindly please help .