Former H1, now H4, is H1 transfer applicable?

L

lewisburg_gc

Registered Users (C)
All,

I used to be in H1 status until last October when I lost the job - comp went belly up. I was fortunate enough to have the wife on H1, so I switched to H4. I recently got a job offer.

Now my question is, is H1 transfer rule applicable to me?

can I start working as soon as the new comp files a new H1b?

Thanks.
 
No have to do a h4 to h1 transfer. However you can risk doing a H1 transfer with premium processing, if approved can withdraw the H1 to h4 visa. applying for h1 transfer means that you are asking INS to consider october to date as in h1 status for which you dont have supporting docs (paystub) , so H1 transfer is likely to be rejected.
 
Are you sure about this?

Please read this:

Q10: Who is eligible to use the H1B "portability" provisions?

A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an
H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.

This is from http://www.immigration.gov/graphics/publicaffairs/questsans/h1bchang.htm

So the official mouth says "alien previously issued an H1-B visa or otherwise accorded H-1B status" which does not necessarily say "current" H1 holder.

Can a lawyer please comment on this? Mr. Rajiv Khanna?
 
U wish!

Well Jim might respond (he is the only lawyer I see in this forum)..
AC21 talks about portability between H1s from different employers not between H visas.
see isn.org and read the ac21.pdf buddy...
 
Related Q

Jaxen, fair enough.

If I have to do an H4 to H1 transfer, do you know if I would have to go back to home country to get a visa and new I-94, or do they send an I-94 w/ the I-797 so that I can start working right away after approval?
 
A I797 with new I94 is enough to start work. For comoing back into US after a travel, you will need the H1 visa stamp in passport to continue working for the new employer using H1
 
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