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New trends in transferring an H1b before working for the first employer.

August 11, 2014 By Sarah 5 Comments

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.

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Filed Under: H1b Tagged With: H1b Visa

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Comments

  1. Namya Krishna says

    January 13, 2015 at 3:11 am

    Hi

    I had a query on H1B visa. My H1B Visa was valid from 10/01/2007 to
    09/23/2010. I traveled to US in Oct 2007 and worked till Feb 2008 on H1B
    visa and then returned back to India.

    I wanted to check if I can apply for Cap exemption or I need to file a new
    H1B visa this year. If I can get Cap exemption then I will be able to apply
    for open position in USA.

    Reply
  2. David Lee says

    April 24, 2015 at 8:32 am

    Question actually:

    Do you have more updat on this issue? Has USCIS stopped issuing RFE? or is it still in a state of confusion?

    Thank you so much for your kind response.

    David Lee

    Reply
    • Sarah says

      April 30, 2015 at 3:47 pm

      Hi David,

      This issue seems to have largely been sorted out at this point. I would still not be surprised to receive an RFE, however, especially for cases being processed at the California Service Center.

      Sarah

      Reply
      • Bob Exxo says

        December 10, 2016 at 12:13 am

        Hi Sarah,

        Have there been any changes since you last answer this question ? And do you expect any changes for the 2017 H1B season?

        I’m will be OPT STEM status 2017-2019. If my current company-A apply for H1b 4/1/2017, then I got approval on 7/1/2017 and a new job offer the same day, from company B, to start on 8/1/2017. Can I have company B apply for a H1b transfer before 8/1/2017, quit my job/start working for company B 8/1/2017 under STEM, then have my H1B kick in for company B 10/1/2017?

        Thanks

        Reply
  3. Suraj Sethi says

    December 4, 2016 at 8:59 am

    Hi Sarah,
    Thanks for sharing such useful information .

    Is there still a scope of confusion as of Dec 2016 or there is no confusion at all ?

    Even if we get an RFE now what document would suffice as an evidence in such a case?

    Reply

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