Are you wondering how to transfer H1B before start date of October 1 or without pay stubs?
In this article, Immigration Attorney Emily Newmann explains the law and rules behind the H1B transfer to new employer before start date.
For those that were lucky enough to be selected in the H-1B lottery this year and have already obtained an H-1B approval, uncertainty may still await.
Since the H-1B does not become effective until October 1st, there are situations which may arise between now and then which may lead you down a different path.
H-1B Transfer Before Start Date
For instance, I was asked to provide my input regarding a situation in which an individual has an approved H-1B petition with Company A, but he is currently working overseas for Company B. Company B has a U.S. office and would like to sponsor the individual for another H-1B so that he may work in the U.S. for Company B instead.
Many people mistakenly assume that an H-1B transfer before start date can be filed from Company A to Company B.
An H-1B “transfer” is the common reference for an H-1B petition requesting a change of employer (box e. on Page 2, Part 2 of the I-129 Form).
However, a transfer is only possible when an individual is already in H-1B status working for a different employer.
In the scenario above, the individual is not in H-1B status yet since the approved petition with Company A does not take effect until October 1st.
Instead, for an individual not yet in H-1B status to change employers, a petition for new employment (box a. on Page 2, Part 2 of the I-129 Form) is needed.
You may be thinking, “isn’t new employment meant for cap-subject H-1Bs?” Sometimes yes, but not always.
How to Change Employer Before Start Date?
In this case, because the individual is already the beneficiary of an approved H-1B petition, he has already been “counted” for purposes of the H-1B cap.
Therefore, although Company B would be filing a petition for new employment, it would be cap exempt.
Furthermore, in our scenario, since the individual is working overseas, the petition would also request consular processing.
The most important issue to be aware of before making a decision in this situation is that Company A can withdraw the approved H-1B petition.
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.
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.
Here’s another H1b applicants experience
People are not understanding the process. Here’s is my example (It happened to me and two of my known colleagues.)
Mr.Man is working in USA for a Company X on L1 (L1-B or L1-A or F1) visa for customer Y.
Consultancy Z filed H1-B for him on Apr 1, 2015 and H1-B along with Change of Status is approved on July 1,2015 with Premium processing.
Now Customer Y would like to take him. The only way to move to Customer Y is, Y has to file H1-B transfer only on or after Oct 01,2015 (Paystubs from Consultancy Z are not mandatory).
If the customer Y files H1-B transfer before October 01,2015, it would be denied (It happened to three of us in 2014). Reason was, we have to file for H1-B transfer only when we are on H1-B valid start date which is Oct 01,2015. Until Oct 01,2015 we still belongs to L1/F1 VISA only.
The following Guest Post is written by my friend Emily Neumann who practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.