H1B status likely to expire before LCA approval...can transfer still be requested?


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I have an H1B visa with Company A. This H1B expires in FOUR WEEKS. I have a job offer from Company B (in a different city) and they are about to start the process to request the transfer (and extension) of my visa to them.

This is my concern: I understand LCA approvals are taking 2 months, so it is likely the LCA will not be approved until after my H1B status expires. If that is the case,

1) Do I have to leave the US once my H1B visa expires if Company B has only filed the LCA but not the transfer request?

2) Once the LCA is approved, will Company B have to request a new H1B for me instead of a transfer and extension?

If relevant, I have been on H1B status only for two years. My current visa expires in four weeks because my contract was only for two years.

Thanks for any advice you can offer!

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Generally, to extend or change nonimmigrant status, you must currently be in status. To preserve your current H1B status through Company A, Company B should file the H1B petition (along with the certified LCA) before the expiration of your current I-94 card.

If Company B cannot file the H1B petition in time, you will need to leave the U.S. unless you have another basis for extending nonimmigrant status (e.g., H-4). If the H1B petition is subsequently approved, you will have to apply for another H1B visa at the consulate abroad. If approved, you could then reenter the U.S. in H1B status by obtaining a new I-94 card from CBP at the port of entry. At that time, you would still be eligible for the remainder of your 6 year limit in H1B (approximately 4 years if you've used 2 years so far).

You and your employer should discuss your case with an experienced immigration attorney to prevent any potential status issues.

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