H1B affirmation after H1B transfer

[h1baffrimation]

I had successfully done H1B transfer from full-time employee to a small consulting company A (<5 fulltime employees) in Jan 2010. The same company A applied for my GC in EB2 and I-140 was also approved. In May 2011 I decided to visit india on vacation and also apply for visa stamp. Unfortunately my visa was rejected under 221(g) and petition sent back to USCIS for review.While review was pending I applied for a H1B transfer thru (beyond 6 yr extn as I have I-140 approved) via a big firm (Company B) in US and H1B transfer was successful. I went back to consulate for stamping and it was successful too. Now I am US working for company B. Meanwhile the H1B (I-797) under review for Company A also got reaffirmed by USCIS probably as Company A generates a lot of revenue for its size.

My Questions are:

1. Do I need a H1B transfer to go back to work for Company A ? Provided work location and pay being same as previous one?

2. In case I dont do a H1B transfer back to Company A .. Can I still apply for I-485 adjustment of status as my priority date is current(Jan 2010)? What potential issues I can run into?

3. Related to 2 - Will it be absolute neccessary for me to join back Company A in order to file I-485?

4 Company A is ready to invest money if I open my own company (self sponsored H1B) and have more than 60K in assets too. Will that qualify me for self sponsored H1B? What happens to my I-140 via Company A then ?

Answers to above will be really appreciated.

[neov]

I am surprise none of attorneys on this forum replied to your post ...

Surely it is a complicated matter and needs someone who is subject matter expert.

I am not a attorney but I definitely know answers to your questions. Therefore I would suggest you pay a good immigration attorney and take second advice

1. No you don't need a H1B transfer to go back to your old employer as it is technically the same job. Technically it is the continuation of previous job itself. He may owe you some back pay :) for month of Jan 2012, but you can write/email him off saying you took time off without pay. Since you maintained your H1B status at the other employer you are ok. Its like having two parallel jobs on H1B.

1.1 Other option you have is to go out of the country and re-enter and show the previous employer's I-797 at port of entry if you are ready to take that risk.

2. Yes I485 is filed by the employee, though you would need a valid offer of employment from your previous employer for that.

3. No it is not necessary, but some point down the line you will have to join him, either after getting the green card or before that. Otherwise when USCIS is adjudicating your 485 they may send a RFE. or if your employer is subject to post GC approval audit.

3.1. If you really want to leave him, join him file 485 and then do a H1B transfer after 180 days or change job using EAD, that way you are invoking AC21 portabiltiy rule.

4. Yes if you have a investor ready to invest in your company you can file a self sponsored H1B. You can then later file GC in EB2 also but for that you would have to wait 2 yrs and demonstrate that your company generated 4 fulltime jobs in that duration. It is a complicated process so I will suggest not go that path and get you 485 AOS filed thru your previous employer.

Hope that helps

-neov