h1b transfer before start date

Here’s How to Transfer H1B Before Start Date of October

Raghuram Sukumar H1B Visa 166 Comments

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 the H1B Visa 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 Immigration Attorney 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.

 

See Also :  10 Options When OPT is Expiring, H1B Visa Not Selected in the Lottery. #1 is Most Realistic.

Comments

  1. Hi All
    I am currently working for Employer A who has filed my H1b. I received an Rfe and Employer A is working on it. Employer A will be doing a premium processing for my petition. Now I have an offer from employer B
    1) After my H1b approval, how long should I work with employer A before my H1b transfer to employer B gets initiated?
    2) Do I need to get the H1b visa stamping done before getting the H1b transfer is initiated?

  2. I applied H1B with the new employer while was in L1 status in US during 2015. After the pettion was approved, moved out of US. During my visa stamping (in Oct 2015) was given 221G form (Blue form with Administrative processing was selected). After 6 months, received refusal notification stating that my petition was sent to USCIS for review and also requested my employer to respond within a year. When i checked my petition in USCIS site, it was under review. Now got a new job offer from other employer and he is ready to do H1 transfer. Is it advisable to transfer my H1 with new employer? If applied for H1 transfer, what is the possibility of getting this petition and visa approved? Please share your thoughts.

  3. Hey Guys,

    I have an update. I applied for H-1B transfer before Oct 1 and it got APPROVED. My 3 other friends have got an approval in this case. As per my understanding it is ok to transfer H-1B before Oct 1. I had lot of confusion around this internet is full of vague information. Here is the timeline:

    1. Filed LCA: Sept 2nd
    2. Got certified LCA: Sept 12th
    3. Filed H1B application: Sept 21th
    4. Receipt Notice: Sept 23rd
    5. Approval: Oct 3rd

    My attorney said that it was problematic in 2014 but he hasn’t seen much cases facing denial in last 2 years.

    And again, there is nothing like H-1B transfer, it is a new H-1B cap exempt application. It was just my personal experience and not legal advice.

    Good luck
    Ajay

    1. Hi Ajay,

      I am planning for a switch, and I have just competed their screen share interview step with a new company. They have put the last step of interview process on hold due to internal reasons, but if I continue with them, I would be completing their interview process around March end, when my current employer would already had filled H-1B for me. If I get an H-1B approval with my current employer in May or June(I should be able to delay the joining a bit but not much), do you know if my new employer can apply file a transfer petition after I get an approval? I know I am too optimistic but I really need a switch.

      Thanks,
      Raghu

    2. Hi Ajay,

      Congrats on the approval for the transfer. So when you did a transfer , did you transfer by filing a petition for new employment (box a. on Page 2, Part 2 of the I-129 Form) as explained above or did you transfer by filing an H-1B petition requesting a change of employer (box e. on Page 2, Part 2 of the I-129 Form).

      thank you

    3. Hi Ajay,

      Were you guys in H4 or L1 status or you guys transferred when you were in India ?

    4. Hey Ajay ,
      I have got picked in lottery which starts from October 1st, Can i transfer before 1st Oct, If yes how should i go ahead.
      Please let me know.
      Thanks

  4. Hi Raghu,

    I am filing for H1B transfer before October 1 without client letter. Client says that he can give client letter in 2-3 weeks.

    Is it safe to apply without client letter? I am providing VP letter from my new employer

    Thanks

    1. As per my knowledge, if there is consulting involved- a client letter is must. For a full time transfer its mentioned in LCA and hence the process will be smooth. But I have issues with lot of my friends without proper client letter in consulting.

      GPS

      1. Hi GPS,

        Thanks for sharing your opinion. I have managed to get VP and Client letter. Also, my attorney has filed my H1B application. Looking forward to get positive response.

        Thanks
        Ajay

        1. Hello everyone, I had my STEM OPT till first week of November 2016. My consulting company filed for H1B and got it approved and was about to start from October 1st but I got another offer from another company before it. My new company lawyer filed LCA stating my work to start from October 1st but there was some mistake from the lawyer with documentation and the packet got back. He corrected it and sent again sometime in second week of October. We haven’t yet received a receipt number. The second employer is cap exempt. I realized how big of a mistake I made already filing a new cap exempt H1B application with a new company and I don’t have receipt number yet and not starting my already approved cap subject H1B with the previous company. My question is can my lawyer still make some edits to the application and make this as a port in kind of application rather than a totally new application so that I am still on my previously approved H1B while the new one is not approved? Also my lawyer told me I am on OPT status since the H1B with the previous employer never got activated because I never worked for them but I am not totally sure if I am on OPT now or H1B of previous employer? Would really appreciate to get some valuable opinions on this if anyone knows about it here. Thank you.

  5. Hi Raghu,

    Thanks for this thread.
    What is your current opinion on H-1B transfer before October 1? I have seen couple of success cases here but would like to know your viewpoint.
    I am in similar position as GPS and will be filing Transfer next week.

    Thanks

      1. Hi Raghu,

        Thanks for quick response.
        It seems that you don’t want to discourage me as I mentioned filing transfer next week. I would appreciate your candid thoughts. Also, have you come across any rejections this year?

        Best
        Aditya

        1. Author

          I haven’t seen rejections this year with H1B transfer before Oct. Why can’t it wait for another 2 weeks?

          1. Raghu,

            This new company wants me to join on 20th of this month as they are beginning a new project. Their offer won’t last after that.

            Thanks

          2. Author

            Then you don’t have a choice right other then apply for transfer right?

      2. Hi Raghu,

        I would appreciate your candid viewpoint on H-1B transfer before Oct 1. I am still not sure and can re-think on my decision.

        Please let me know your thoughts.

        Best
        Ajay

  6. Hello All,
    Have an update here.My new employer went ahead with new H1 B petition as change of status from F1, and my case was approved before oct 1st with CSC. Here is the time line.

    July 15,2016 : Last pay check of the previous employer, Employer promised not to revoke H1 B petition before October 1st week.
    August 1st, 2016: Received offer from new employer
    August 8th,2016: Filed LCA
    August 16th,2016: Received certified LCA from DOL.
    August 17,2016: H1 B petition reached USCIS without previous employer pay stubs.
    August 18,2016: H1 B receipt note received
    August 24,2016: H1 B approval mail received

    I think there is a lot of confusion here with H1 B transfer before October 1st(Its a new application) and I did check with USICS. According the customer care this process is permitted and there should not be any issues with the cap. Most of the legal community in this case seems to be misinformed , but cant blame anyone as USCIS acted weird in year 2014 with cases of similar nature!!

    Wish good luck for all in the same boat!!

  7. Their is no problem in shifting the company before OCT , i was on OPT extn and my employer filed on April 2015 and it got approved in May , but i got another offer, i took my i795 approval notice from the employer and the other company filed a transfer on june 2015 and it got approved and i started working for the other company on opt extn and from oct 2015 i was on H1 with them.
    Do not listen to any one,try it you have nothing to loose as you have already a H1 Approved. Make sure your previous employer should not come to know about your transfer while the second one is in the process.Once it is approved even if he revoke your previous Approved H1 nothing will happen.

    1. Valiveti, Thanks for putting this here. Even I am in the same situation as yours, but the difference is my company asked me to leave because of financial issues. (July15th is my last paycheck and I have enough unemployment dates till oct 1st)
      Did you attach your previous employer pay stubs while doing a new Change of status(transfer)?
      If yes, how recent were those pay stubs?

      Thanks

    2. @Srikrishan Valiveti:
      Thanks for sharing your experience. I am in exactly same situation.
      1. H1-B petition filed by employer A on April 1, 2016.
      2. Petition approved in July, 2016.
      3. I have a great full-time offer from a reputed company and I have a joining date in August 2016. (Can push the joining date to first week of October 2016 or at least september 3rd week, 2016)

      My current employer is aware of my situation and has no problem with me joining the new company. So I don’t have to worry about my current employer knowing about it.

      The new employer is also ready to sponsor me for H1-B.

      I understand from your post that the new employer can file for transfer before October 2016. I would greatly appreciate if you could shed some light on below questions.

      Q1. Can I start working for new employer immediately under F1-OPT extension (valid for another 11 months) and have my H1 start with new employer on october 1st 2016?

      Q2. Did the new employer file a new H1 petition under CAP-Exempt? Or was it a petition for change of employer under already approved H1-B petition?

      Q3. I have been reading that I need to submit pay stub for the H1-B transfer. I have maintained valid OPT status with employment till date and have pay stubs for working during OPT. Will this do?

      Thanks for your time.

      1. Author

        You have articulated your question very well 🙂
        You have to learn one more thing about living in the U.S. where to get the right help. I can answer your questions and other members can also answer, but if you have any issues because of our answers, you are the one who is going to suffer. Please learn when to ask your question in the forums and when to pay for Attorney consulting. When it comes to Immigration, always, I mean always be willing to spend money for consulting with an attorney.
        Finding answers to your immigration questions and reading reviews online for a book or product you want to buy are not the same.

    3. Hi,

      I am facing similar situation. I am applying for H1B transfer before Oct 1. Has anyone got successful transfer this year?
      Please let me know.

      Thanks

    4. Hi everyone,

      I am facing similar situation. I got into H1B lottery in May 2016. Then I got a great offer from other company. Now I have to transfer my visa from old employer to new employer before Oct 1.
      Does anyone got success this year in transferring H1B before Oct 1? Please share.

      Thanks
      Ajay

  8. Thanks for your kind help – Raghuram!

    What about this situation? Company X sponsors an H1 for Mr. Him, and H1 got approved. However, Company X is out of business before October 1st but wants to help Mr.Him to keep the H1. Can Mr.Him transfer the visa to another company if Mr.Him finds another employer?

  9. Dear Raghuram,

    Hello,

    Please help clarify my doubts.

    1.) I’m employed with X who are about to process my L1 Visa next month , i had a discussion with an employer Y starting last year who are ready to file an H1B for me this April 2016.

    Q1 – is there any problem involved applying for both these visa simultaneously?

    2.) Say e.g. I’m getting the L1B stamping next month and landing in US on L1 Status with employer X , in the meantime the H1 Visa application submitted by Employer Y is picked in the lottery during mid of June or July 2016.

    Q2 – Can employer X transfer the H1B submitted by Y to their name?
    Q3 – If selected in lottery , the H1 application will have the start date as 1 Oct 2016 so being in US at that time will my status changes from L1 to H1 automatically?
    Q4 – Is there any timeline within that i need to join employer Y to keep my H1 active (or) i can join before the H1 petition expiry?

  10. Kindly help me with below query on H1b –
    I have a query regarding H1B, I am getting a offer from US based company and they are ready to file my H1B. I am outside US now. If my H1b application gets selected in lottery, can i get it transferred to any other company after Oct 1, even if my h1b visa is not stamped, its just selected in lottery.

    Many Thanks.

      1. Nice informative article !!! Was looking for something like this. So you can start the First Time H1B transfer from outside US, if selected in Lottery even before the application is approved ? Ideally it should be allowed even before approval as my case has been counted in the Cap.

  11. Just want to say your article is as surprising. The clearness in your post is just nice and i could assume you’re an expert on this subject. Fine with your permission allow me to grab your feed to keep updated with forthcoming post. Thanks a million and please carry on the rewarding work.

  12. Hello Raghu,

    At present I am in India and was in US for 6 years. But somehow I had to come back to India. I worked with my present company for last 7 and half years. However, the project that we are working is going away to someone else and we all are getting laid off. Now my employer have filed me fresh H1 but got RFE and they are in process of responding to it. In this situation. If my employer laid me off and if I have H1B I797. Then Can I transfer H1B to another employer from India? Or what are my options? Please let me know if you need any further details.

  13. Urgent!!

    Hi Raghu,

    I came across this forum and wanted to ask you a question regarding h1b transfer. Company A filed h1b for me this April, and it got approved in late August. I joined Company B in late August and they initiated a h1b transfer for me. I will know the result by September 30th if I don’t have RFE.

    My OPT is gonna expire next year in April and Company A agreed not to revoke my h1b petition until September 29th. My concern is if I will be in illegal status if Company A sent the revoke letter in September 29th and if the transfer process is not successful?

    Thank you so much for your help!!! I am so worried now so I’m not quite sure if I need ask Company A to revoke my h1b petition ASAP by the end of this week.

    Thanks!!!

    1. Hi,

      I am in the same situation as you are can you please guide me what to do?

  14. Hi Raghu,
    I am working for a company A on L1B visa. MY H1B visa thru COS has been approved from company B and i have I-797 copy with me. My question is, Can i transfer my H1b to company C on October 1 without joining Company B. Please suggest. I know i cant do it before october 1 that’s what i read in your comments. Please suggest, if new employer can file transfer on october 1 exactly and 1-797 is sufficient to trigger that process.

    1. Author

      Sorry, can’t answer case speffic/status affecting questions. direct it to Attorney Murali.

  15. Hi Raghu,

    I am working for an MNC A in India. One of a consultancy B in US sponsored my H1B and my petition got approved recently. Now my current employer A is ready to do transfer of my H1B. I am planning to do the transfer to A, as the package offered is really high. So, now how should I proceed. Shall I wait for I-797 from B and go for stamping. Once visa stamping is done, shall i do the transfer to B post Oct -1. Will there be any problem while entering US as I will be joining in A but visa stamping was done with 1-797 from B. Or is it not possible to do the transfer in India as my H1B status is not yet started, Please suggest,

    1. Author

      I’m not expert in advising your questions. You know where to ask 😀

  16. In 2014 i was working for company A and they have applied for H1B for me and i got my name in lottery . Start date of visa was 1st oct . But my visa was not stamped.On 1st dec i joined company B and today (3 july,2015) i have checked my petition status its showing revocation letter sent on april 25, 2015 . Can this petition be transfered to my current employer B ?? Or my current employer has to file a new petition ??

  17. L1b to H1b COS,
    Im in L1b and about to max out my time on it. My company applied for a H1b FY 2016 and is approved. Will i be able to switch to another employer?
    I came to know from another employer’s attorney that its transferable before oct 1st. I can also take a trip to india and on return it somehow kick off my h1b visa. Is this true?

    Is it possible now to transfer to H1 before oct 1st? I did read the last few lines specifically on L1b scenario. Since the article is from 2014, are there any changes in this case?

    Thanks,
    Sud

  18. Hi Raghu,
    Thank you for this precious information.
    I will receive my OPT EAD card the coming week (it already shows mailed). Company A applied my h1b this year (with CPT), and got selected, but haven’t been approved yet. Company B gave me an offer with start date end of June. I have accepted the offer, and my biggest concern is to keep my legal status. If company A revoke h1b before Oct.1, I should be able to contiune work in company B with my OPT, is this right? Is there any other risk I will lose my legal status in the US? It is highly possible that I can’t get approval notice before I left company A, how can I know if they revoke it? If they didn’t revoke it, can company B transfer my H1b without approval notice? I talked to an immigration coordinator from company B, is that the same role with an immigration attorney?

  19. Hi,

    I have a petition that got approved in May 2011with employer (X), but i never went for stamping due to lack of opportunity. Currently i am in india.

    Now if i have an offer with Employer (Y) can i get the H1 transfer done anytime? Or do i have to wait till 1st Oct’15?
    Also what are the changes of h1 getting revoked by X.. X being india’s top 3 IT company?

    Regards,
    Chirag

  20. People are not understanding the process. When you understand, it will be very easy to understand this case. This is the practical example. (It happened to me and two of my known colleagues.)
    Mr.Man is working in USA for Company X on L1(L1-B or L1-A or F1) VISA for customer Y. Consultancy Z filed H1-B for him on 01Apr2015 and H1-B along with Change of Status is approved on July 01,2015 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.

      1. Hi Raghuram
        Greetings!

        My Visa petition for H1B got approved from my current Company, but currently I am working for a non US Client and the Client is not ready to release me from the Account.
        Is there any chance that if I am selected for a different company I can transfer my H1B petition and get it stamped from a different Company.

      2. In my case this experience was otherwise.

        I was working for company X on OPT STEM.

        Company X filed for H1B on April 1st. Got Approved on May 15.

        I moved to another company Y on June 15th. Y applied for new H1B on June 30th. It was cap exempt since I was already counted towards cap.

        August 1st I got approved.

        October 1st COS from OPT STEM to H1B.

        No issues.

        Bottom line:
        Talk to attorney. Don’t give up hope. Don’t be sure of these folks who are telling you not to apply for H1B transfer before it starts (before October 1st). They could have got rejected / RFE for some other reasons also.

    1. Do we need i-797 number to make a transfer after oct1 or is it enough if we have just the receipt number? And how soon after oct1 can we actually make a transfer? Please kindly help.

  21. Hi Raghu,

    I am in the same situation. My H1-B is approved with company A and Client want to hire me before oct and they cant wait.
    If I take a chance and apply for H1-B transfer, is there a possibility that my Employer A would know about this transfer and revoke my approved H1-B?

    I have seen many say that their current employer revoked H1B, how would they know?

    thanks

    1. Author

      This happened last year. It’s not employer revoking it, USCIS was issuing RFE. I don’t recommend doing this. I know you can’t ask this with your employer. Consult an attorney.

      1. Same thing happening with me right now. Employer B (opportunity of a life time) wants me to start working ASAP and will transfer out my H1b from A that starts in Oct 2015.

        I am going ahead and taking a chance. What’s a life full of baseless rules.

        On another note, this is so frustrating. You spend so much time and energy to get an awesome position and then you have to worry about how to make it happen.

        1. Author

          I have seen the impact of not getting H1B. Plus, I have seen the RFE for people transferring before Oct 1. So, TALK to an attorney before taking matters into your hand.

          1. Yup Raghuram!

            Will go ahead ONLY if Attorney from Employer B says yes ..

          2. Hi Raghu,

            I need your help here the sitution is my h1b has been approved in 2014 and stamping has been done for 3 years in october. after this my employed has withdrawn my petition on feb 14 th. i have never travelled to USA so now can i get a new petition filed from employer b under cap exempt and travel to USA with the old stamping as it is valid upto 2017. please suggest me with this situation.

          3. Hey Raghuram

            I took a risk and applied for H1B transfer before October 1st. And it got approved without any issues.

  22. On H-4 currently. Applied for H-1B. Can I transfer once H-1B is approved before Oct?

    1. Author

      Last year USCIS didn’t approve those requests. There were RFE. I wouldn’t do that and consult an attorney.

  23. Hi Raghu,

    I currently work for Employer X on F1 with 17mo OPT ETXN; where X is a sub-contractor to Company Y; and Y is the implementation partner for Client Z.

    Now X has just filed my H1B petition for this April cap today on April 1st 2015. And at the same time Y has sent me an offer letter for Full-time while I will be working for the same Client Z. I have not heard from Y about the immigration process yet on how they are deciding to sponsor me. My employment with Y would start from April 14th 2015 onward.

    What do you think could be possibilities with Y regarding my H1B?– I think Y is likely to do a H1B transfer! Do you think I can just accept the offer from Y and my H1B transfer is possible (or before Oct 1st 2015) before my current employer X’s H1B application gets approved? What if X withdraws my application as soon as i tell them that I am accepting an offer from another company (Y)?

    Please suggest.

  24. I am currently on H1B which was effective 1st oct. i have a job offer from state university and they want to file a H1B for me which is cap exempt. Will this effect my cap H1B ? if i have to change employer in future and work for a non profitable will my previous H1B which was approved under lottery will be still effective? how does this work? please help

    1. Interesting scenario. I know for fact that you cannot come from Cap-Exempt to Cap H1B without going through regular lottery.

      You case is opposite. I think. Let me say that again I think, you can come back to regular H1B since you have an approved ( cap counted) H1B. but consult an attorney before you do this.

      One reason why you may want to move back could be less salary from university job. Then you should have an option to move back.

  25. Hi Guys,
    Update to my case above –
    1. Lawyers responded to RFE on the 2nd of October. My previous employer had already sent in the revocation notice by then. But my lawyers said that it doesn’t matter as the “transfer” case had already been initiated while the other one was pending.
    2. USCIS updated the ticket as a new petition and status was back to initial review.It read the “your petition for i-797 was received on 2nd october…..” It did not reflect any RFE response review on the status board.
    3. On the 10th of october, the H1B petition was approved 🙂

    So all of you who still have their RFEs pending, don’t lose hope. If your lawyers are good, you will get your approval.

    1. Hi Deb and Raghu,

      This is ZZZ, who was in the same boat with you – sent a cos petition before Oct 1. My petition has been approved last week(Oct 27) as well. Seems all good so far.

      But now, I’m concerned that my previous employer will send the revocation notice with effective date Oct 2. would that make me out-of-status between Oct 2 and Oct 27?

      But based on your comment above(#1), it seemed like your employer also sent the revocation notice before your new petition gets approved. Am I worrying things too much?

  26. Hi Raghuram,

    I would like to get suggestion from you on my case:

    I am currently on H4 and have H1b visa approved sponsored by company A. Now i am going to join the company on 1st oct and my first payroll will be for period of 1st to 3rd oct as payroll cycle is 2 weeks. So is it ok to file for transfer to company B with 1 paystub which will be for the period of 1st to 3rd oct?
    Or should i wait for next payroll?

      1. Yes. He said its safe to do this as we will have 1 pay stub. What do you think?

        1. Then go for it. why do you want another conformation after getting reply from attorney. You should learn to trust the person who you/employer is paying to do the work 🙂

  27. Hi,
    I had an approved petition from company A, got laid off on August and then found a new job with another employer ( all direct, Fortune 100 companies ). Company A is holding onto the H1B to ensure that I can transfer it before october 1 st. After filing for premium processing with company B, I received an RFE stating that since I did not start working with company A yet on H1, I won’t be cap exempt and company A would have to file a new petition next year subject to Cap. What should I do?? What are the options? The lawyers said that they are going to fight the case.

    1. This the exact RFE I was talking about and possibility that can happen for folks who are applying for H-1B transfer before H1B start date. There’s not a lot we can do, but hope your attorney can fight this. Could you keep us updated on what’s happening with this? This will educate folks here.

      1. Hi Raghu,
        I spoke to the lawyers and they said they are preparing a legal argument against the case. Also, they said that it doesn’t matter anymore if Company A revokes my petition since it was filed while it was still valid.
        I am super frustrated right now. This is my 4th petition in 2 years. First one was denied and an MTR was opened, which is still pending. I decided to revoke a second petition after I decided to join Company A from October, where I was doing my cpt (2nd masters). Now, my 4th petition for cap-exempt is now left to fate.
        The lawyers sound pretty confident so lets hope for the best.
        Come october, will I remain on cpt or will my status change to H1B, since my petition is still pending and I have an approved H1?

        1. Hi Deb,

          Any update on the status? I’m on the same boat, and I’m very nervous about it. To make the matter worse, my previous company has already withdrawn my h1b.

          1. I got the approval, Mike. For details, refer to my latest post. Good luck with yours!

      2. I’m in the same boat with Deb. I mean my petition got filed yesterday with pp.

        I’m very worried now and want to educate myself.

        RFE doesn’t mean that the petition is denied, right?

        What happen if we appeal our situation on october 1 or later? I mean from October 1, which is less than 1 week from now on, then I will be automatically on H1B. Will my petition be considered as cap-exempt petition from October?

        1. This is ZZZ again.

          I said that I was in the same boat with Deb. But the difference is that I’m not laid off and I’ll be on H1B automatically from Oct 1.

          1. Doesn’t matter. What matters is the date on which your new petition was filed. Since, it was filed before october 1st, you are in exactly the same situation as I am. It would have been better if you had waited till october 1st. My petition with Company A is still active and not revoked.

          2. I see. so it’s RFE, not denial. What are you preparing to get it approved or what were you asked to provide USCIS? I probably will go and show this page to my lawyer and talk about it today.

          3. Or can we file a new petition on October 1, if nothing works this time?

    2. Hi,

      Thanks for sharing your case here.

      Do you mind if I ask how long you took to get the RFE after your petition got accepted? Also, which USCIS did you send your petition?

      1. USCIS received the petition on September 12th under PP and gave the RFE on the 23rd. It is processing in the California service center.

    3. Hi Deb,

      Hope your problem has been solved.

      For you and other folks’ information, I was in the same boat with Deb. I filed a H1B petition on Sep 25 with pp, and today(Oct 8) I got an RFE, but the RFE is not the same with Deb’s RFE.

      It just asked to provide some corporate documentations and information about my work for the next three years. So my new employer and their lawyer are preparing for the rfe.

      1. Hi zzz,

        What is the content of your RFE? Is it related to your cap-exempt status? Please keep me posted. I’m in the same situation, and I’m worried!

        1. Hi Mike,

          My rfe was not about that I was not on H1B at the day of filing my petition. As I mentioned above, my RFE is about some missing documentations. seems like my new company has to send some business registration and employer letter describing work for the next three years.

          So I guess if you’ve filed all the required documents, you should be good.

  28. My new employer (Y) applied for H1b transfer today. My approved petition (From Employer -X) with COS from L2 to H1-b is effective Oct-1 2014.What are the chances of getting an RFE/rejection? I have not joined employer -Y yet and am planning to join during second week of October. Since premium processing time is 15 days what are the chances that CIS will come to a decision before Oct-1?

    Any response will be much appreciated.

  29. Hi Raghu, I am shifting from OPT to H1B on October 1. I have worked for this current employer/contractor since may on a project and have been receiving payments … Can my new employer file a transfer on Oct 1 or do I have to wait for 2 pay-stubs after October (which will be Nov 1 & Dec 1) ? Kindly advise.

  30. Hi , i got my H1 B approved by employer A for 2014 and now i got a full time opportunity from company B . company B is willing to do the transfer , will that be a problem .

  31. Hi I am currently on H4 but my H1B will be active with Employer A from the start of October 1st.

    Now I also have an offer from Employer B. Can they apply for H1B transfer before October 1st? Should they wait till its October 1st?
    If they can apply what would be the fee?

  32. This post came at the right time, as many like me (with approved petitions) would be thinking in the same line.

    So, just to clarify things:

    I’ve an H-1B approved petiton (filed and approved this year: Non-AD, PP, WAC) from Company A.
    I’ve not gone for stamping yet.
    I’ve never worked in the US on H-1B or L-1 before.

    I’m currently working for a different employer C (and never worked for A, who’s the petitioner).

    If I’ve another employer, say B who’s ready to transfer (my H-1B) before Oct 1st, the following holds:

    (1) Employer B can transfer it before Oct 1st without any paystubs or W-2 (as I’m not in H-1B status yet). If the transfer is approved, I can go for stamping for H-1B and H4 (before Oct 1st).

    (2) While the transfer is in process, there’s a risk that employer A might revoke his petition – and in this case the transfer application will be denied, and I will be counted (meaning I’ll be back to square one). Is this correct?

    (3) If the transfer succeeds – meaning if the petition is approved for employer B, then withdrawal of the petition by employer A (after B’s transfer approval) won’t impact the already approved B’s petition, and I won’t be cap-counted for the next 6 years. Is my understanding true?

    In any case, the start date will be Oct 1st – through employer A or B.

    Please correct me with my points above, especially (2) and (3).

        1. can i have your number Raghuram, I need some more information regarding this asap.

      1. Hi Raghu,

        Please add your update in the post, as many of us will be cautious in doing such transfers.

        Thanks,
        Ab

      2. Hi Raghu,
        I m in US with H1B approved from company A, its now Oct end 2015 and haven’t been able to get a job thru my company A… However I m expecting a direct hire full time position thru company B. I am willing to know how can I get my H1B transfer without any pay checks (company B knows that I am not working currently and have H1B thru company A).
        Is it possible/risky? How can I make it happen?

        1. Ravi – When you applied for H1B visa consulting company, you are essentially signing-up to face such risks like not getting paid. I can’t speak for what USCIS will do without pay stubs. Let me what happens with change of employer without paystub.

          Your nw company attorney should have a way, if not it will be hailmary throw.,

      1. Hi Piyush,
        Could you please let me know, if you have done so before Oct, 1 and before your old employer revoked the H1b or even after revoking it. Would appreciate your response. Thank you.

        1. It doesn’t matter if the previous employer revokes your H1B. It is practically not a transfer because it has not been started yet, it is new application but without exempt cap. You have already been picked in the 85,000 seats it is just you are changing your employer.

  33. Hi Raghu

    I filed new petition with COS under cap exempt and got RFE questioning Cap Exempt. Though my attorney tried to explain CIS, they say that say beneficiary is in H1b status he is not eligible for cap exempt. I am wondering what to do, Did you or anyone came across similar situation.

      1. I am in L2 EAD status. Got H1B approved from Consulting Company(A) and have only receipt #.

        Meanwhile I got job offer from employer(B) (working with them currently) using EAD and filed new petition with COS under cap exempt.

        I got RFE from USCIS questioning Cap Exempt. Though my attorney tried to explain CIS, they say that i am not eligible for cap exempt before Oct. I am wondering what to do, and came across your post. Can i apply again in Oct 1st without working for employer(A)? I dont have i797. What other options do i have.

        1. This is indeed a risky situation…!

          (1) Can you post the exact text described in the RFE from USCIS? In this text, did the USCIS suggest to apply after Oct 1st?

          (2) By the way, did your earlier employer A revoke the original petition? Or is it still valid?

          If it is still valid, you can re-apply after Oct 1st – but your new employer B will have to pay all the fees again.

          Please make sure that you don’t ‘leak’ your H-1B transfer plan to A (thru’ your close colleagues or so) – so as to ensure that employer A doesn’t revoke it till Oct 1st.

          In the worst case, if employer A revokes the petition before Oct 1st, then you cannot avail of cap-exempt petitions any more with this receipt number!!

          1. Hi Vedant

            I dont have RFE document with me, but the attorney told me that RFE was issued questioning Cap Exempt. He had call with superior officer in CIS arguging the cap exempt issued prior to 2014. But CIS are clear on their terms. Attorney told me we can reapply on Oct 1st.

            Employer A has not yet revoked the petition.

            Question –
            Can i reapply transfer on Oct 1st without working for employer A ? Can you please check and let me know because i came to know that in recent H1B guidelines we cannot do that.

          2. Yes Siva – it is possible. I don’t see any issues even with the recent ‘new’ interpretation by the USCIS.

            As long as employer A doesn’t revoke his petition till Oct 1st, your employer can very well go ahead and apply for a transfer on or after Oct 1st – and you should be good to go in this case.
            Working with employer A is immaterial – but if you don’t work for A, how do you make sure that they don’t revoke your petition? If you’ve a good rapport with them and they’ve assured you that revoking won’t happen, then you’re all good.

          3. yeah i have to build trust with Emp A to make sure petition is not revoked. Too much hassle, tried consulting different attorneys and got different answers on
            1) can be cap subject even if h1 revoked
            2) can file cap subject petition before oct
            Lets see. Thanks Vedant!

          4. You are right!

            Though this interpretation is in place fairly recently, many folks have managed to get their transfer petitions approved before Oct 1st (this year).

            I think it is totally up to the USCIS officer who handles your case.

            I’m also in the same boat as you are (I’ve an H-1B petition filed and approved this year). And I’ve asked my new employer to wait and file my transfer petition on or after Oct 1st. Their attorneys have different opinions.

            Anyway, now it is better for you to wait till Oct 1st (only 1 month away) and file a transfer again.

          5. My attorney is waiting for reply from AILA to reply for RFE. He informed us that their is slim chance of application getting approved. Hoping for good.

          6. Hi Vedant

            Consider a situation if Company B petition is approved before Oct. Company A revokes its petition after Company B petition is approved that is also before Oct then beneficiary can maintain his H1 status with Company B after October right?

            Thanks

          7. As far as I understood from the new interpretation (plus interactions with attorneys of a few prospective employers), if your original petitioner withdraws before Oct 1st, then you are out of luck: this is the new interpretation by USCIS.
            The reason is your original petition’s approval starts only from Oct 1st (as indicated in the notice). So, any withdrawal before the effective date will render the original petition approval as null and void – and it can’t be used to get cap-exempt petitions in the future. This is true irrespective of whether you’ve got your transfer thru B approved or not (before Oct 1st) – as the foundation for the transfer is A’s approval, and when this foundation is shaken, then no other petitions can be based on that!!

          8. Hi Vedant. I have to transfer my visa before october 1. Do you know any person who successfully transfer before october 1?

          9. Hi Hist

            What status are you in ? Can you provide a brief about your situation? With that i might be able to guide since i am in the same boat.

          10. My status is F1 now. I am in second master. I have approved H1B visa and my status will change October 1 2014. My sponsor company gave up hiring me. They did not revoke visa yet. I will ask them to revoke visa after October 1. Also I will ask my new employer to transfer October 1. What do you think? Or should we transfer before October 1?

          11. At this point USCIS is issuing RFEs and the safe play would be asking new employer file transfer petition on Oct 1 so you want start working with them on Oct 1. Also if you have good rapo with your old employer ask them to revoke their petition once your new petition is approved (Just to be in safe end).

          12. Hi Vedant

            Consider a situation if Company B petition is approved before Oct. Company A revokes its petition after Company B petition is approved that is also before Oct then beneficiary can maintain his H1 status with Company B after October right?

            Thanks

  34. Hi Raghu

    My H1B petition is approved and my home country is India. Now my
    stamping is due and I am in Europe on work-permit. My question is:

    Can I get my first H1B stamping done in Sweden’s US consulate?

    Please let me know.

  35. Hi Raghu, My H1B was approved effective October 1st 2014. I am currently on my Cap Gap. Unfortunately my current company who filed my H1 is shutting down due to financial reasons. I got an offer from another company B. Can I initiate the H1 Transfer(new H1) process? Would i be cap exempt? Thanks a lot for your reply

    1. You can and you should. Talk to an attorney to make sure all risks are covered. As long as your old employer doesn’t revoke h1, I think u you will be alright.

      1. Further to the same discussion, I have an approved H1-B effective oct 1st 2014 from Company A. But I currently work for company B and I came to US in June 2014 on L1-B status for company B.
        Now Can I apply for h1-B transfer from company A to company B (my current company) while I am on L1 status, before Oct 1st? Because now I told my current company that I got a h1-B approved from company A, now they are ready to keep me in the same company. So I am exploring options for the same. Thanks.

        1. Yes, you can. But, to be risk-free, do it after Oct 1st. Till then ensure that your original petitioner doesn’t revoke the petition (before Oct 1st) – which is the worst to happen; in which case, you cannot avail of cap-exempt petitions any more with the approved receipt number!!

      2. Hi Raghu ,
        I had H1B approved petition from Company A for 2013-14 which also got VISA stamped in the same year (2013-2014).
        but never travelled to US and Petition&Stamping got expired in sep-14 ,i have shifted to new company B. After i left Company A revoked my petition on April -2015.

        Question is can Company B file a new petition for me which is not subject to CAP b using previous petition receipt number which is already went through CAP?

        1. Author

          I don’t know if you come under cap after h1 is revoked.

  36. Hi Raghu,
    I have a question related to transfer of H1B, my spouse is selected in lottery and his H1B is approved , we also recieved documents and reciept from Attorney. Now he has an offer from another company , H1B is active from 1st Oct. When can we ask the new employer to transfer the H1B ? and can the old company take back the petition even after it is approved with receipet and everything?

  37. Is it advisible to apply for H4 for my Wife and Kid at same time when I am applying for H1B Visa interview.

    I mean any chances for rejection by we all going for consulate interview at same time ?

  38. Hi Raghu- please once you logged in, can u please help me to clear on this:-
    After approved petition, is EAC no. well enough to transfer H1B if B company is inetersted to take this up. Mine H1B has approved and I can see EAC status online and it says its approved and on post decesion state. What I wanted to ask you…I didnt receive my approved petition 1797, I29 form etc..required docs. So it is poosible to transfer H1B with only EAC no. Please suggest.

      1. Iam in the same situation and consulted a popular attorney group.
        They said that my name is enough to file the transfer before oct1 and better off if I submit my receipt notice. I had the receipt notice but no approved petition. They said that it’s sufficient

        1. Hi Vamsi,

          I am in same situation, were you able to do transfer? I got RFE questioning cap exempt from CIS

  39. Raghu may be you missed this one. Repeating again sorry:
    In my case my employer says my H1b is approved and they are in receipt of the reference numbers, but unwilling to share the same with me. I also believe that by now, my employer should have received the I-797 copies. Does the receipt number or I-797 copy carry any importance for me to change the employer, if so then is there a way to get it from somewhere other than my employer?

  40. Hi Raghu, After approved petition, is EAC no. well enough to transfer H1B if B company is inetersted to take this up. Mine H1B has approved and I can see EAC status online and it says its approved and on post decesion state. What I wanted to ask you…I didnt receive my approved petition 1797, I29 form etc..required docs. So it is poosible to transfer H1B with only EAC no. Please suggest.

  41. Hi Raghu, Can you please suggest on Raja’s Quertion as am also in same scenerio
    Raghu in my case my employer says my H1b is approved and they are in receipt of the reference numbers, but unwilling to share the same with me. I also believe that by now, my employer should have received the I-797 copies. Does the receipt number or I-797 copy carry any importance for me to change the employer, if so then is there a way to get it from somewhere other than my employer?

    1. Prateek, I-797 have you I-94 number attached to it. You need a copy of that. As thatt would be helpful

  42. Raghu in my case my employer says my H1b is approved and they are in receipt of the reference numbers, but unwilling to share the same with me. I also believe that by now, my employer should have received the I-797 copies. Does the receipt number or I-797 copy carry any importance for me to change the employer, if so then is there a way to get it from somewhere other than my employer?

    1. AR-11 form asks for present status. Amn’t I still a student till OCt 1? (I’m here on F1 and scared for petty stuffs)

  43. i am in the exact same situation , i am in opt currently and my H1 is approved through employer A and Employer B has filed for h1 transfer under premium processing, if my H1 transfer is approved and i Join with Employer B, Can Employer A revoke my h1?

  44. I have one question regarding h1b
    I am currently on h1b (3 rd year of first h1b) ,I am planning to go to school to do MBA probably next year.
    If I get in to school I will get F1 then my current h1b will expire not valid.
    If after completing my education I apply for h1b I will get 6 years of h1b or only 3 years because I used 3 years of already.
    Can I eligibly for OPT because I transferred from h1b to f1.

  45. I am on an active OPT and company A has filed for my H-1 this year and the process is going on. Assuming it is approved and I subsequently get Company B’s offer, can I transfer my H-1 to Company B and start working for Company B immediately on OPT and let the H-1 take over from October (OPT ends in November, so there will be no ‘OPT ended but H-1 not started’ gap)?

    1. My case is exactly same as Vivek’s.

      Request someone to answer this ASAP. Thanks,

  46. What if I am on OPT cap gap extension with H1b Approved with Company A and wanted to change employer
    before the Oct 1st start date. Does the same process mentioned above will
    work for me.

  47. any idea abt this scenario –
    Currently working on L1 for company A.
    H1 Approved via company B.
    Do a lead frog (go out of Us in spet and come back in Oct) and come back on L1 for A.
    Later company X is ready to fine H1, will I be cap excempt ?

    1. Depends on if Company B filed your H1B with COS. If so, your status will change to H-1B from October 1, 2014.

      When you come back in Oct, it will have to be on H-1B, since your COS would have converted to H1B.

      Clear?

      1. not really..i can leave in sept and comeback in oct on L1 visa again..question is whether I will be cap excempt when I apply COS again

  48. What If I am not working for Company B but Company B is ready to hire me and apply new petition for me, is this possible.
    and Company B needs to pay same fees .. e.q. 2300 US$ + 600-700US$ attorney fees?

    Last thing: is it advisable to do this , because during stamping interview , they may ask so many things and refuse to give us h1b on passport?

      1. what about Fees, do Company B needs to give whole fees again, 2300 US$ etc?

  49. I have a similar question. What if I am on OPT cap gap extension and wanted to change employer before Oct 1st start date. Does the same process mentioned above will work for me.

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