H1B Approved -Transfer to another employer

[aa11]

Hello, 

 

I am currently on L1B visa with employer A. In 2015, Employer B filed H1B and it got approved in under consular processing. It was approved in september 2015.

 

Now I don't want to join employer B, but want employer A to get the H1B transferred with them.

 

1. I haven't worked for a single day with B and not planning to join them either. Can A still get my H1B transferred?

2. If the answer to 1. is no, can employer A file a cap exempt petition for H1B for me?

3. What are the timelines for filing a cap exempt petition and getting it approved?

4. What is the latest time employer A can file a cap exempt petition?

5. What would employer A need to file a cap exempt petition? Just the receipt number or the approval notice too?

6. Can they file it as COS so that I dont have to go out of US to get it stamped?

 

Thanks a bunch,

aa11

 

 

[JoeF]

A transfer would only be possible after you start working for the original H1 employer.

Unless you start working for the H1 employer, you are not considered counted in the quota.

[aa11]

A transfer would only be possible after you start working for the original H1 employer.

Unless you start working for the H1 employer, you are not considered counted in the quota.

 

 

Hi JoeF ..Well this is not exactly a transfer right? this is just the new employer filing a cap exempt petition coz i was counted in cap in 2015...Or am i missing something?  

[JoeF]

Hi JoeF ..Well this is not exactly a transfer right? this is just the new employer filing a cap exempt petition coz i was counted in cap in 2015...Or am i missing something?  

 

First off, an H1 transfer is really just a new peition.

Unless you start working for the original employer, you have NOT been counted in the quota. That's a new rule by USCIS from 2014. See http://forum.murthy.com/index.php?/topic/79569-h1b-transfer-before-oct-1-from-outside-us-new-regulation-from-uscis/

 

You have to start working for the original employer, and ONLY then can the new employer file an H1 petition for you (as a "transfer".)

[aa11]

First off, an H1 transfer is really just a new peition.

Unless you start working for the original employer, you have NOT been counted in the quota. That's a new rule by USCIS from 2014. See http://forum.murthy.com/index.php?/topic/79569-h1b-transfer-before-oct-1-from-outside-us-new-regulation-from-uscis/

 

You have to start working for the original employer, and ONLY then can the new employer file an H1 petition for you (as a "transfer".)

 

Hi JoeF, 

 

I have read the link you posted above. Either you didn't understand my case or there is something missing in the info that you have provided.

 

The article says:

 

"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."

 

But in my case, it is already past Oct 1st and the original employer has not revoked the petition.

Also, they will most probably not revoke it till i get a cap-exempt petition approved with another employer. Where is the rule that says I have to work for the original before getting transferred. The article just says the transfer cannot be done before Oct 1st.

 

Please clarify.

 

Regards,

aa11

[aa11]

Hi JoeF, 

 

I have read the link you posted above. Either you didn't understand my case or there is something missing in the info that you have provided.

 

The article says:

 

"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."

 

But in my case, it is already past Oct 1st and the original employer has not revoked the petition.

Also, they will most probably not revoke it till i get a cap-exempt petition approved with another employer. Where is the rule that says I have to work for the original before getting transferred. The article just says the transfer cannot be done before Oct 1st.

 

Please clarify.

 

Regards,

aa11

 

 

Can you please reply?

[JoeF]

Hi JoeF, 

 

I have read the link you posted above. Either you didn't understand my case or there is something missing in the info that you have provided.

 

The article says:

 

"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."

 

But in my case, it is already past Oct 1st and the original employer has not revoked the petition.

Also, they will most probably not revoke it till i get a cap-exempt petition approved with another employer. Where is the rule that says I have to work for the original before getting transferred. The article just says the transfer cannot be done before Oct 1st.

 

Please clarify.

 

Regards,

aa11

 

First off, the employer is required BY LAW to inform USCIS that you are not working there.

If they don't do that, they have to pay you.

So, any company with even a little clue will inform USCIS and have the H1 revoked.

Second, since your case was with consular notification, you would have to get an H1 visa and enter with that visa to work fro the original employer.

You even quoted the part that covers that: "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"

 

The bottom line: You have to start working for the H1 employer, or you are not considered counted for the quota.

[JoeF]

Let me make it clearer for you.

In your case, with consular notification, this is the part of the sentence that applies:

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

 

You are not in H1 status. You would only be in H1 status if you get an H1 visa and enter with that visa into H1 status, going to work for the original employer.

Since you have not entered in H1 status, you are not counted for the quota.

And to get an H1 visa, you have to have the intent to work for the original employer, and once you enter in H1 status, you have to start working for the original employer.

Only then can another employer file an H1 transfer for you.

And, as I've said already, the employer is required by law to inform USCIS that you are not working there, which results in H1 revocation.

No sane employer would delay that, because it would create a requirement to pay you (there has been a lawsuit where somebody who never worked for the employer who filed the H1 but didn't revoke it, was awarded 3 years of back pay.)

[aa11]

Hi Joef, 

 

Thanks for the detailed response. I get the point now.

 

So the final question on this thread I have is:

 

How long can the H1B employer wait before revoking the visa? Can he wait till October next year? For personal reasons I cannot join them before October 2016.

 

-aa11

[JoeF]

Hi Joef, 

 

Thanks for the detailed response. I get the point now.

 

So the final question on this thread I have is:

 

How long can the H1B employer wait before revoking the visa? Can he wait till October next year? For personal reasons I cannot join them before October 2016.

 

-aa11

 

They should have revoked it already, as soon as you told them that you would not start there. They certainly can't delay that for a year.

They would have to file a new H1 in next year's quota.

[Alokjain123]

Hi aa11,

How did it go for you? Were you able to get your H1B transferred? I am in similar kind of situation. Appreciate your help here!

 

Thanks