H1 B is approved. Got new offer. Want to Move to new employer before October 1.

subramk

By subramk,
in H1B : General

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subramk Member

subramk

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I recently completed my masters and got an offer from a company 1 and working since June 1. They had applied for H1 B visa on april 2015 and it has been approved now. I recently received a better offer from company 2 for which I had attended interview back in march. And since it is a better offer I want to move to company 2 and they have given the starting date as August 1. I have read from the forums that from last year(2014) USCIS rejects H1 B transfer or change of employer petitions applied before October 1st. Is this true for all cases or there is a chance for approval. I also read that USCIS not only rejects the transfer but also may revokes the first H1B petition by company 1 if transfer is applied before Oct 1st?  Is my only option is to ask the company 2 to wait till October 1st and apply for transfer and then move. Please guys share your recent knowledge in this regard.

 

Thanks in advance

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subramk Member

subramk

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Yes, the only option is for new employee to file a cap exempt H1B petition after Oct 1st. The earliest start day to work on H1B is Oct 1st.

Thanks Jairichi

Is there any possibility to get back to OPT and work for the new company in OPT even after Oct 1. I read somewhere that you can do so by asking the current employer to revoke the H1b petition before Oct 1 and do a SEVIS data fix through DSO of the university and get back to OPT. Is that possible. I understand that I will again have to enter lottery next year. But as far as I'm not out of status on OCT 1 It will be fine for me.

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subramk Member

subramk

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Yes, the only option is for new employee to file a cap exempt H1B petition after Oct 1st. The earliest start day to work on H1B is Oct 1st.

Is there any possibility to get back to OPT and work for the new company in OPT even after Oct 1. I read somewhere that you can do so by asking the current employer to revoke the H1b petition before Oct 1 and do a SEVIS data fix through DSO of the university and get back to OPT. Is that possible. I understand that I will again have to enter lottery next year. But as far as I'm not out of status on OCT 1 It will be fine for me.

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rahul412 Advanced Member

rahul412

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Is there any possibility to get back to OPT and work for the new company in OPT even after Oct 1. I read somewhere that you can do so by asking the current employer to revoke the H1b petition before Oct 1 and do a SEVIS data fix through DSO of the university and get back to OPT. Is that possible. I understand that I will again have to enter lottery next year. But as far as I'm not out of status on OCT 1 It will be fine for me.

I think that's possible,  if not just cross the border before Oct 1st and enter on F1 after Oct 1st so that you will be on F1 after Oct 1st.

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livliv Advanced Member

livliv

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There have been links.

I provided one in another thread. You just seem to ignore these links and spread your misinformation.

 

I gave my opinion to OP (in fact only hinted at it) and asked them to consult with an experienced immigration attorney. Where is the 'misinformation' there?

 

I did a little bit of research on this topic. Below were my findings (and opinions).

USCIS has by recent regulations and memos (not laws, mind you) noted that any significant change in employment must be notified to them. In case of termination, which qualifies as a significant change, employer needs to send a letter withdrawing the petition. However, in this case there is no penalty for not sending this letter. Neither is there any time period in which they must do so.

In case of other significant changes such as work location, not filing amendment has the penalty of petition revocation and out of status issues for the beneficiary.

 

A potential risk for the employer comes from DOL regulations and procedures. DOL says that if petition is not withdrawn, the employer must pay the beneficiary. USCIS (or DHS) has no say in this matter. (I could not find it).

 

Nowhere could I find any references to USCIS revoking the petition on their own and returning the number to the cap.

 

Again, this is only what I could find. There may be information about this that I could not find.

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JoeF Advanced Member

JoeF

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I didn't say it is law. I said it is current USCIS policy.

And yes, DOL says that the employer-employee relationship hasn't ended unless the employer has informed USCIS. In fact, there has been a lawsuit in which an employer was ordered to pay 3 years of back pay to a person who they had filed an H1 for but who never started working there. Use your Google skills to find that...

And please stop spreading misinformation. Thank you.

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jairichi Advanced Member

jairichi

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I gave my opinion to OP (in fact only hinted at it) and asked them to consult with an experienced immigration attorney. Where is the 'misinformation' there?

 

I did a little bit of research on this topic. Below were my findings (and opinions).

USCIS has by recent regulations and memos (not laws, mind you) noted that any significant change in employment must be notified to them. In case of termination, which qualifies as a significant change, employer needs to send a letter withdrawing the petition. However, in this case there is no penalty for not sending this letter. Neither is there any time period in which they must do so.

In case of other significant changes such as work location, not filing amendment has the penalty of petition revocation and out of status issues for the beneficiary.

 

A potential risk for the employer comes from DOL regulations and procedures. DOL says that if petition is not withdrawn, the employer must pay the beneficiary. USCIS (or DHS) has no say in this matter. (I could not find it).

 

Nowhere could I find any references to USCIS revoking the petition on their own and returning the number to the cap.

 

Again, this is only what I could find. There may be information about this that I could not find.

http://forum.murthy.com/index.php?/topic/58022-transfer-to-a-different-company-before-h1b-begins/

 

This is a response from an attorney for a post of similar nature.

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livliv Advanced Member

livliv

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I didn't say it is law. I said it is current USCIS policy.

And yes, DOL says that the employer-employee relationship hasn't ended unless the employer has informed USCIS. In fact, there has been a lawsuit in which an employer was ordered to pay 3 years of back pay to a person who they had filed an H1 for but who never started working there. Use your Google skills to find that...

And please stop spreading misinformation. Thank you.

You did say it was the law in another thread.

I already used Google skills and found what I found. You are just reiterating the same thing.

 

You haven't yet pointed to any particular misinformation in my posts. I am not claiming to be 100% accurate everywhere. But at least in this matter, I don't see any misinformation yet.

 

You have mentioned that USCIS will actually revoke the petition on their own for not working and return the number to cap. I tried searching for this and could not find it. But then, I am not claiming omniscience.

 

I am, however trying to think of a strategy that will help OP, while staying within the rules (that I know). I don't see any clear indication of abuse or fraud here and so there is no harm in trying every avenue possible. I have read stories on Murthy.com about how they fight for their clients and leave no stone unturned. So I will again advise OP to consult with attorneys from Murthy law firm.

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JoeF Advanced Member

JoeF

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You did say it was the law in another thread.

I already used Google skills and found what I found. You are just reiterating the same thing.

 

You haven't yet pointed to any particular misinformation in my posts. I am not claiming to be 100% accurate everywhere. But at least in this matter, I don't see any misinformation yet.

 

You have mentioned that USCIS will actually revoke the petition on their own for not working and return the number to cap. I tried searching for this and could not find it. But then, I am not claiming omniscience.

 

I am, however trying to think of a strategy that will help OP, while staying within the rules (that I know). I don't see any clear indication of abuse or fraud here and so there is no harm in trying every avenue possible. I have read stories on Murthy.com about how they fight for their clients and leave no stone unturned. So I will again advise OP to consult with attorneys from Murthy law firm.

 

The rule is in 8 CFR 214.2(h)(8). Look it up with your "Google skills"...

It says,"When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year."

 

And from another forum:

"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."

 

You need to stop spreading misinformation. Thank you.

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JoeF Advanced Member

JoeF

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And, 8 CFR 214.2(h)(11):

"The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition."

 

The petitioner, i.e., the employer has to inform USCIS if the person is not going to work there. That's the law. The employer has no choice in that. The employer is required to inform USCIS. Period. End of story.

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subramk Member

subramk

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You did say it was the law in another thread.

I already used Google skills and found what I found. You are just reiterating the same thing.

 

You haven't yet pointed to any particular misinformation in my posts. I am not claiming to be 100% accurate everywhere. But at least in this matter, I don't see any misinformation yet.

 

You have mentioned that USCIS will actually revoke the petition on their own for not working and return the number to cap. I tried searching for this and could not find it. But then, I am not claiming omniscience.

 

I am, however trying to think of a strategy that will help OP, while staying within the rules (that I know). I don't see any clear indication of abuse or fraud here and so there is no harm in trying every avenue possible. I have read stories on Murthy.com about how they fight for their clients and leave no stone unturned. So I will again advise OP to consult with attorneys from Murthy law firm.

 

Thank you livliv. thanks for the detailed opinions. I will definitely consult this with an immigration attorney before proceeding. 

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subramk Member

subramk

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I didn't say it is law. I said it is current USCIS policy.

And yes, DOL says that the employer-employee relationship hasn't ended unless the employer has informed USCIS. In fact, there has been a lawsuit in which an employer was ordered to pay 3 years of back pay to a person who they had filed an H1 for but who never started working there. Use your Google skills to find that...

And please stop spreading misinformation. Thank you.

Thanks JoeF for informing about the latest policy of USCIS. Very thankful for the detailed information and your opinion.

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subramk Member

subramk

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Thanks guys. It was a very detailed discussion about H1B transfer. I hope this would help others like me as well. But another thing that I would like to know more about is how to get back to F1-OPT from an approved H1B petition. If my new employer cannot wait till October 1st and wants me to join by August 1st, I cannot do a H1B transfer and my only possible option to join the new employer would be to try and get back to F1-OPT. 

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livliv Advanced Member

livliv

Posted
Posted
 

The rule is in 8 CFR 214.2(h)(8). Look it up with your "Google skills"...

It says,"When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year."

 

And from another forum:

"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."

 

You need to stop spreading misinformation. Thank you.

 

 

And, 8 CFR 214.2(h)(11):

"The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition."

 

The petitioner, i.e., the employer has to inform USCIS if the person is not going to work there. That's the law. The employer has no choice in that. The employer is required to inform USCIS. Period. End of story.

 

 

Thank you for specifically pointing out any misinformation. This is helpful. Especially, the AILA one, since application of the CFR 214.2(h)(8) to COS is not clear. 

So it comes down to if A's petition is withdrawn before B's petition is approved then the individual is no longer considered cap-counted. If the beneficiary convinces the first employer to not withdraw, at least until the new petition gets approved. (Do you agree that there is no time limit within which the employer must withdraw, they can do it after 6 months of termination? My own employer, a fortune 100 company, did it almost a year after I left them). That's all, I have said even in my other posts. A good way to convince the previous employer is by agreeing to pay back costs associated with the filing (the ones that the beneficiary can legally pay back).

 

If there is a ray of hope, I would like to show it. Again, a good experienced attorney can advise on legality of these things.

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JoeF Advanced Member

JoeF

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And I have to add that my H1B was filed as consular processing and not as change of status. Does that make any difference in H1 B transfer after october 1st or getting back to F1-OPT.

Yes. Then 8 CFR 214.2(h)(8) does apply. You have to get an H1 visa to work for the original petitioner, or the H1 is fine, and you are not considered counted in the quota.
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