AC21 - Changing Employer - H1 transfer Issue

[librau]

Hi Gurus,

I have my H1 valid till Dec 2008 on employer A and changed to current employer B who has filed the transfer of H1. H1 transfer to B is not yet received though it is 8 months past. I have been working on H1 transfer receipt notice itself.

The current B employer filed my I-485 in Jan 2007 and more than 180 days past. I wanted to change my B empoyer and join full time C employer on H1 as it is valid till Dec 2008. I do not want to use EAD.

Is it possible the new employer C can file H1 transfer based on my H1 transfer RECEIPT notice (Original H1 transfer to employer B is pending for approval )?

Has anyone got such situation? Any advise is appreciated

 

[tammy2]

Hi Gurus,

I have my H1 valid till Dec 2008 on employer A and changed to current employer B who has filed the transfer of H1. H1 transfer to B is not yet received though it is 8 months past. I have been working on H1 transfer receipt notice itself.

The current B employer filed my I-485 in Jan 2007 and more than 180 days past. I wanted to change my B empoyer and join full time C employer on H1 as it is valid till Dec 2008. I do not want to use EAD.

Is it possible the new employer C can file H1 transfer based on my H1 transfer RECEIPT notice (Original H1 transfer to employer B is pending for approval )?

Has anyone got such situation? Any advise is appreciated

Yes He can file H1 Transfer. In any case employer B ' H1 needs to be approved.

 

[banta4gc]

Yep, you can legally still file for H1B transfer to a new company....

Your scenario was clearly covered by William Yates in this memo...check out the last pages....

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf
>>>>>

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.
Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

 

[librau]

Yep, you can legally still file for H1B transfer to a new company....

Your scenario was clearly covered by William Yates in this memo...check out the last pages....

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf
>>>>>

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.
Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

Hi Banta4gc,

Thanks for your reply. But is it the H1 transfer for C employer depend on the H1 transfer for B? One respondent says it is dependent on approval for H1 for employer B.
But the Yates report clearly says H1 is portable to new employer C pending H1 transfer to employer B.
Did I understand correctly? Can you please confirm it.

Thanks.

 

[banta4gc]

Yep, I think so...the H1B approval from C - would be dependent upon the H1B petition from B ....it's assuming that - the employer B's H1B should be approvable....
if it (H1B form B) get's denied for a legitimate reason....it may deny the H1B approval from C - as well...that's kind of scary a bit (Question 3)

If possible, it might be safer - to put in an expedite request (additional $1000) for H1B petition from employer B.....and get the H1B approved....than to risk any issues later on....U can get it approved in 15 days or so...

But, if everything is good on paper for H1B petition of B and you do not anticipate any issues but just delayed approvall, you could go ahead and use this law and apply for transfer to Company C

 

[TheRealCanadian]

Yif it (H1B form B) get's denied for a legitimate reason....it may deny the H1B approval from C

Each H-1B petition stands alone, and unless the denial of B's petition was based on something in the alien's qualifications, it should not affect C's approval. However, if B is denied, the alien will need to depart the US and re-enter to work for C.

 

[librau]

Each H-1B petition stands alone, and unless the denial of B's petition was based on something in the alien's qualifications, it should not affect C's approval. However, if B is denied, the alien will need to depart the US and re-enter to work for C.

Hi RealCanadian / banta4gc,

Incase H1 transfer for B employer is denied, then can I use EAD at that time with employer C without leaving US? Or with H1 denial with company B will keep my stay out of status?

I can not expedite H1 process for company B because I am about to join company C and I am in a quandry as to use H1 route or use EAD.

Appreciate your guidance.
Thanks

 

[ginnu]

Hi RealCanadian / banta4gc,

Incase H1 transfer for B employer is denied, then can I use EAD at that time with employer C without leaving US?
----------------------YES, you have pending I-485
Or with H1 denial with company B will keep my stay out of status?

I can not expedite H1 process for company B because I am about to join company C and I am in a quandry as to use H1 route or use EAD.

Appreciate your guidance.
Thanks

better post you full case details till the date you filed I-485

 

[librau]

better post you full case details till the date you filed I-485

Hi Ginnu,

Thanks for your reply. My case details are as follows: Does it any way change the solution to my h1 transfer issue? Kindly answer me.

Labor & i-140 Approved through Comapny A.
Labor Approved : Feb 2001
I-140 Approved: Oct 2001

Joined Company B. Applied for Labor but some reasons GC went into trouble.
Then Joined back Comapany A:
Company A filed I-485 : Jan 2007 & EAD obtained
H1 transfer for Company A is pending from Dec 20, 2006 - H1 valid till Dec 2008

Now I wanted to join Company C as Full Time Permanent Job , through H1 route.

Answers came that H1 transfer to C would depend on approval of H1 to company B. Company B is not interested to pursue the H1 transfer.

I am going to join Comany C and hence can not pursue H1 transfer to B.

Is it H1 transfer to C kept pending till H1 transfer to B is completed? If it is so, my H1 transfer to C will never get approved as H1 transfer to B can not be pursued by my comapny B as they would not bother at all, when I leave the the company.

Even I do not get approved H1 transfer to C, I can work for them and then any query comes, then I can use EAD at that time. Am I correct?

Can Ginnu confirm me that I should take H1 route despite its complexity? Appreciate your kind advise.

Thanks.

 

[ginnu]

Hi Ginnu,

Thanks for your reply. My case details are as follows: Does it any way change the solution to my h1 transfer issue? Kindly answer me.

Labor & i-140 Approved through Comapny A.
Labor Approved : Feb 2001
I-140 Approved: Oct 2001

Joined Company B. Applied for Labor but some reasons GC went into trouble.
Then Joined back Comapany A:
Company A filed I-485 : Jan 2007 & EAD obtained
H1 transfer for Company A is pending from Dec 20, 2006 - H1 valid till Dec 2008

Now I wanted to join Company C as Full Time Permanent Job , through H1 route.

Answers came that H1 transfer to C would depend on approval of H1 to company B. Company B is not interested to pursue the H1 transfer.

I am going to join Comany C and hence can not pursue H1 transfer to B.

Is it H1 transfer to C kept pending till H1 transfer to B is completed? If it is so, my H1 transfer to C will never get approved as H1 transfer to B can not be pursued by my comapny B as they would not bother at all, when I leave the the company.

Even I do not get approved H1 transfer to C, I can work for them and then any query comes, then I can use EAD at that time. Am I correct?

Can Ginnu confirm me that I should take H1 route despite its complexity? Appreciate your kind advise.

Thanks.

At this time you are working with company A and your H1 is Valid till 2008 and you have H1 based I-94 till 2008 and you have latest pay stubs from A if that is correct your employer C can file H1 transfer