Question: My employer filed an H1b petition for me this April to start working this October 1. In the meantime, however, I received a new job offer from another company and I want to take the new job. Can I transfer my H1b to my new employer before I’ve started working for the first employer?
Answer: The answer to this question used to be a simple yes. In the Spring and Summer of 2014, however, people attempting to do this have been running into problems at USCIS. The rule for transferring your H1b to a new employer is that anyone who has been “counted” against the cap in the last 6 years can transfer their H1b to a new employer by filing a new petition, which will not be subject to the cap. No regulations explicitly explain at what point a person is “counted” against the cap. In the past, USCIS seemed to take the position that a person was “counted” against the cap at the moment the petition was approved. Under this interpretation, H1b employees were able to transfer their H1b to a new employer before they had started working for the first employer on October 1, because the petition approval notice served as proof that the employee had already been “counted.” The situation was the same for employees who received an H1b approval notice several years previously, but never started working the employer for various reasons.
In recent months, however, USCIS has started issuing RFEs or denials on cases using this transfer tactic, using the rational that H1b beneficiaries are not counted against the cap until they change to H1b status (which cannot happen until work begins on October 1), or are issued an H1b visa for travel at a US consulate. In some cases the RFEs being issued have been overcome, but in other cases denials have been issued.
Filing for an H1b transfer before your initial October 1 start date used to be a routine procedure, but if you are contemplating doing this in 2014, you should be aware that this area of the law appears to be in a state of confusion at USCIS, and filing a petition like this has become a riskier move that you should discuss with an immigration attorney.