H1 Transfer while ANOTHER Transfer is in progress

B

Balrog1978

Registered Users (C)
Hi All,
I have a transfer from Company 'A' to Company 'B' STILL in progress - non express transfer. I'm WORKING with company 'B' now. I'm planning on switching jobs soon, but am positive by the time I join Company 'C', my original transfer(A->B) wouldn't have come through.

Question :
1) If I decide to join Company 'C' and they transfer my H1B(via express), but my original transfer is revoked (ie A->B), does my new H1B stand revoked as well? (I heard something about "bridging" which has me curious!!
2) If I travel outside the States while the transfer is in progress, is there any gotcha I should be aware of while returning back to US Soil at port of entry?

Please help
 
Best way is to upgrade the A to B transfer to premium. Then with the paystubs of employer B make another transfer from B to C. You can travel provided your H-1B visa stamp on your passport is still valid (Gurus please add here).
 
Truly the reason why I'm LEAVING 'B' is because they're not conceding a few of my requests - > they don't want to process an express transfer of H1 as well.

Since that option is out - I was wondering if my B->C comes through but A-B gets revoked, am I in trouble?
 
If your I94 is still valid, I don't think bridging issue comes into picture.
These cases are more like execution rather than law, and the rule is not very clear to public(CIS may have clear rule inside, though). In general, pending application will give you authorized stay, so that even though the 1st one got cancelled, the 2nd one should be fine as long as it was filed when the 1st one is still pending(Unless the 2nd one was filed after I94 got expired, where the bridging issue plays).

I'd recommend to confirm with lawyer for this kind of issue , though.
 
Last edited by a moderator:
Hi , this one might be out of track but it will be great if anyone can help ..i have files my H1 extension last month end and my current H1 is expiring on 22nd of this month .
I haven't received the receipt notice should i stop working as i will be out of status ones my current H1 expires and the their is no receipt for the extension.

Thanks and Regards
 
realmessy said:
Hi , this one might be out of track but it will be great if anyone can help ..i have files my H1 extension last month end and my current H1 is expiring on 22nd of this month .
I haven't received the receipt notice should i stop working as i will be out of status ones my current H1 expires and the their is no receipt for the extension.

Thanks and Regards
Click to expand...
if extension was filed before I94 expiration, you can work up to 240 days beyond I94 expiration.
I can't help receipt part, though.. You need to confirm that it was surely filed.
 
Hi GotPR ,

Is this any law from USCIS that you can overstay 240 days even after the H1 expired .
Is their any link to that somewhere.
I have the tracking number from USPS which says it reached to Vermont last month.

thanks again ..
 
realmessy said:
Hi GotPR ,

Is this any law from USCIS that you can overstay 240 days even after the H1 expired .
Click to expand...
it's not overstay. Pending application will give you authorized stay.
240 days rule is clearly stated in the law. I'll post it later.
 
Personal experience

i have talked about my case on this forum before but just as a summary

i moved A>B ...... B was filed under premium.delayed B due to securtiy check. after a year i moved B> C while B was still pending and C was filed under premium.

The decision for C came after three months of joining C
( while B was still pending ) . the decision stated that INS was issuing me 1-797 for the C job BUT refusing "persmission to stay ""LEAVE TO ENTER" based on the pending B application.

i appealed the decision but was rejected. and left the country to apply at an embassy.

my B h1b came through after 2 years.

Law: H1b portability law applies here . You can transfer as long as you have filed your application for the new employer . INS is taking the stand that if your new H1b is not approved(or pending in my case) you are out of status. this is a typical example of a beauracratic idiocracy. it i will probably take a lawsuit to clear this matter.

*always apply under premium
*security delays are inevitable and cannot be "hurried-up" i know as i tried omudsman , congress man , senator , Hospital , White house , ACLU and APPNA

*if you are single,muslim man from pakistan etc you should have a contigency plan for the delay which can range from 2 months to 1 year( for e.g course ,degree ,travel or just plain going back to home)

*dont loose hope. hang in there. you are not alone. there are literally thousands of professional muslim men going through this circus. and unless the funding is increased for FBI and USCIS this will continue for the forseeble future.
 
Wow MedicineMan - Looks like you had to face both ends of the stick.
Your H1 transfer took TWO years? Is this because of the security delay? Did you get an RFE?

See that's the thing I'm afraid about. If I DO get B->C under premium but A-> gets mucked up - do I get into trouble?

I've heard many MANY people do this and don't face any issues !!
Am taking a big risk and trying to cover my grounds!!
 
Opinion

i am not sure what an RFE is but i didnt get one.
in my opinion here are the answers
Question :
1) If I decide to join Company 'C' and they transfer my H1B(via express), but my original transfer is revoked (ie A->B), does my new H1B stand revoked as well? (I heard something about "bridging" which has me curious!!


your new H1B ,if approved ,will not get revoked but the USCIS will ask you to leave if the first gets revoked. as you will be considered out of status. the law is on your side but my experience was different. you can argue this infront of a federal jugde if you file a motion.

2) If I travel outside the States while the transfer is in progress, is there any gotcha I should be aware of while returning back to US Soil at port of entry?

this is simple to me . you cannot return till you have a valid H1B. If the previous one is pending and the new one is granted then the immigration officer can stop you based on an illegal stay. ASK A LAWYER ABOUT THIS.


Well first step is first. Get a lawyer. i know i was not willing to pay some shmuck lawyer to tell me what i can google.
BUT after silencing my "desi side" decided to consult two attorneys and had similiar responses and a marriage proposal ..... hence i have no regret on the course i took.

STORY TIME
you are embarking on a tough journey. in 2002 after i got approved for a job i left the country to apply in europe
( was a resident there) i was told by the embassy it will take them 4-6 weeks. it was my first H1B and i was naive and did not read this forum !!! ... i got stuck for ...wait for it ...wait for it .....365 ....DAYS. exactly ! not one day here or there .


GOOD LUCK
 
realmessy said:
Hi GotPR ,

Is this any law from USCIS that you can overstay 240 days even after the H1 expired .
Is their any link to that somewhere.
I have the tracking number from USPS which says it reached to Vermont last month.

thanks again ..
Click to expand...

240 days rule.

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=66005f0518cfe1884549853cfa12fd12

8 CFR 274a.12 (b) (20)

(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to Secs. 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment aut horization under this paragraph shall automatically terminate upon notification of the denial decision. (Revised 1/1/94; 58 FR 69217)
 
medicinemaan said:
i have talked about my case on this forum before but just as a summary

i moved A>B ...... B was filed under premium.delayed B due to securtiy check. after a year i moved B> C while B was still pending and C was filed under premium.

The decision for C came after three months of joining C
( while B was still pending ) . the decision stated that INS was issuing me 1-797 for the C job BUT refusing "persmission to stay ""LEAVE TO ENTER" based on the pending B application.
Click to expand...

Was your I94 valid when B filed transfer, but already expired when C filed another transfer ?
 
medicinemaan said:
when B filed the i-94(from A ) was valid. when C filed it had expired.
Click to expand...

That is typical bridging case and CIS issued memos about this a couple of times.
They should have issued I797A instead of I797B.. I don't know what document or rule you used for appeal.
 
Last edited by a moderator:
appeal

the appeal was filed citing the h1b portability law including the bridging clause. unfortunately the USCIS response was that "appeal to reconsider" should include new facts pertaining to the case not considered in the original decision.even with a 30 page appeal detailing all the "obvious" oversight the appeal was denied.

lawyers i consulted were "surprised" at the rigidness of the USCIS in my case . in summary government rarely admit mistakes.
 
Last edited by a moderator:
Story line

Here is the decision of the USCIS that started it all

" The beneficiary’s prior H-1B status with Company A was valid from September 01, 2004 to August 31, 2005. However, the petition was revoked on October 25, 2005.The current H-1B petition filed by Company C was submitted on June 30, 2006, this was 248 days after the beneficiary’s valid status had expired.

Although, USCIS records indicate that another petitioner, Company B , filed Form I-129, Petition for Nonimmigrant Worker, on May 26, 2005, which is currently pending as of September 13, 2006.*(this has since been approved august 2007). The filing of a petition does not confer maintenance of status in the United States unless the alien is maintaining a valid, nonimmigrant status. As such, the beneficiary was in violation of his H-1B status at the time of filing the petition for extension.

i still cant get over the obvious oversight on the USCIS part. the portabilty law should apply the may 2005 filing before the expiry of the original H1b was in accordance with the law and non-frivoulous.

am i missing something or its just my bad luck?. even on motion to reconsider the CIS failed to catch the irony.

PS it was the California Center that made this calculation.
 
Last edited by a moderator:
Reference

To: REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
From: Michael Aytes
Acting Director of Domestic Operations
Date: December 27, 2005
Re: Interim guidance for processing I-140 employment-ased immigrant petitions and I-485 and
H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of
2000 (AC21) (Public Law 106-313)

HQPRD 70/6.2.8-P



IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY
PROVISIONS

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.”
 
I'm guessing that bridging case is probably not as simple as we think, especially when the 2nd petition was filed after I-94 expiration.

The memo that you pointed to is one of those which are favorable to bridging case, and 5/12/05 Yates Memo has the same conclusion as well.
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

However, there is a memo published in 2003 which showed negative policy on bridging issue.
http://www.uscis.gov/files/pressrelease/PofStay4023Pub.pdf

I was thinking there should not be an issue with the 2nd petition filed during authorized stay as the memo issued later should override the old one and it is supposed to reflect today's consensus which is favoable to your case, but who know.... CIS is the God on this matter and they make a decision.
 
Last edited by a moderator:
You must log in or register to reply here.
Top