H1 - Transfer (Work for the Old employer)

[stlrams]

Hi,

I got layoff this week. My current company is going to cancel my H1-B(Validity 2005 Feb- 2008 Feb) on this 29th. I had originally transfered my H1-B visa to my current employer.

My Old employer wants me to work for him again. My questions is since my H1-B with the old employer is still valid(Validity 2004 May- 2007 May) . Can I start working for him without applying for a H1 transfer. Would I have to Inform the INS if I need to start working for my old employer.

Thanks in advance.
Jai

 

[great guru]

Hi,

I got layoff this week. My current company is going to cancel my H1-B(Validity 2005 Feb- 2008 Feb) on this 29th. I had originally transfered my H1-B visa to my current employer.

My Old employer wants me to work for him again. My questions is since my H1-B with the old employer is still valid(Validity 2004 May- 2007 May) . Can I start working for him without applying for a H1 transfer. Would I have to Inform the INS if I need to start working for my old employer.

Thanks in advance.
Jai

Since you already worked with your current employer, your old visa is no more valid. However, you can get it transfered immediatly after getting receipt (not approval) you can start working for your former employer.

 

[stlrams]

MY Old employer did not cancel my H1visa and according to him since my Visa is still valid I dont have to apply for a transfer. IS this true???

 

[jayant.chaudhar]

MY Old employer did not cancel my H1visa and according to him since my Visa is still valid I dont have to apply for a transfer. IS this true???

This is absolutely correct. You can start working for him immediately, without applying for a new H1B.

 

[stlrams]

But when you transfer your Visa to another employer doesnt that mean that your visa with your old employer gets invalid even if it is valid till 2007??

 

[great guru]

MY Old employer did not cancel my H1visa and according to him since my Visa is still valid I dont have to apply for a transfer. IS this true???

But you did transfered your visa to new employer and worked for them for some time.

Your passport stamp may reflect old employer visa stamp and valid date, but INS system your sponser is new employer, and you have already transferred your visa.

You can only come back to your old company without transfer to work full time if you would have concurrent h1 with the new employer.

 

[jayant.chaudhar]

But when you transfer your Visa to another employer doesnt that mean that your visa with your old employer gets invalid even if it is valid till 2007??

There is no such thing as a 'transfer of H1B'. The word 'transfer' implies that your H1B status can be held by one company only, and applying to the DHS makes a new company the holder of your H1B - this, as we know, is simply not true.

The H1B application form (I-129) does have a checkbox each for 'a) New Employment', 'd) New Concurrent Employment', and 'e) Change Of Employer'. However, the mere act of checking any of these boxes does not, in itself, make an existing H1B invalid. To accomplish that task, the sponsor of the H1B has to explicitly ask that the visa be invalidated, or the DHS has to warn that it intends to revoke the H1B unless the sponsor can prove that the sponsor can still use the visa for the purpose for which it was granted.

So, unless your former employer explicitly had your status revoked, or was forced to revoke it, your are still allowed to work for him.

 

[great guru]

There is no such thing as a 'transfer of H1B'.

Transfer of H1 is "transfer/Change of Sponser". You can not have 2 h1b at a time unless it is concurrent one.

So you transfered your sponser, and your old employer is no more your sponser. if you have not worked for other employer, you can go back. The transfer is effected once you work and get your pay stub from the new sposer.

Call INS officer and verify, if you have doubt.

The word 'transfer' implies that your H1B status can be held by one company only, and applying to the DHS makes a new company the holder of your H1B - this, as we know, is simply not true.

The H1B application form (I-129) does have a checkbox each for 'a) New Employment', 'd) New Concurrent Employment', and 'e) Change Of Employer'. However, the mere act of checking any of these boxes does not, in itself, make an existing H1B invalid. To accomplish that task, the sponsor of the H1B has to explicitly ask that the visa be invalidated, or the DHS has to warn that it intends to revoke the H1B unless the sponsor can prove that the sponsor can still use the visa for the purpose for which it was granted.

So, unless your former employer explicitly had your status revoked, or was forced to revoke it, your are still allowed to work for him.

 

[jayant.chaudhar]

As I said before, there is no such thing as a 'transfer of H1B'. To understand this, please keep in mind that an H1B application is filed by an employer for a potential employee.

Since the H1B employee doesn't 'own' the H1B approval - the employer does - the mere fact of the H1B employee's name/details appearing on another H1B application (even if the new application does not say 'New concurrent employment') does not invalidate an existing H1B. Neither does the act of getting paid by a new employer, since the DHS does not have a record of who is paying whom. The employer, also known as the petitioner, has to tell the DHS that the H1B is no longer needed.

This information is from personal experience. I have a company where an employee worked for me on an H1B, left to work on a new (not concurrent) H1B, then came back in 7 months and is working for me on the old H1B. Coincidentally, I did speak with an DHS inspector in the Atlanta office about invalidating this employee's H1B when he left, and he told me that I would need to make a written application with a letter of resignation from the employee. However, the employee returned before I went through with this process.

The person with the great_guru id must know someone within the DHS personally, because it is very difficult to get through to the DHS department that handles H1B cases. Even if you do get through, they will only talk to you if you are the petitioner (the employer) or the registered representative (usually the attorney). Anyway, I notice that he challenged an immigration attorney on another thread, so he must know something that people who actually do this for a living don't!

 

[Unique]

I agree

There is no such thing as 'Transfer of H1B'. You can get a new H1B but continue working for old employer. So I guess you can go back to your old employer with out any problem.

But its better to take professional help... probably from your old employer's lawyers.

 

[ravi kat]

Hi,

I got layoff this week. My current company is going to cancel my H1-B(Validity 2005 Feb- 2008 Feb) on this 29th. I had originally transfered my H1-B visa to my current employer.

My Old employer wants me to work for him again. My questions is since my H1-B with the old employer is still valid(Validity 2004 May- 2007 May) . Can I start working for him without applying for a H1 transfer. Would I have to Inform the INS if I need to start working for my old employer.

Thanks in advance.
Jai

stlrams,
You can go back to the previous employer as long as your previous approval is valid. However DOL has said that the previous employer may have to pay even for the time you were not working there. Also UCIS in one of its memoranda has mentioned that the latest I94 rules. But you can go out of the country and re-enter using your previous approval to go back to the previous company.
For all the others who've said there's nothing like "transfer". Although UCIS doesn’t use this term in any of its forms, its used by many ( including lawyers ) to identify those applicants who are already on H1 status and want to change employers.
Stlrams, You should research this issue further - there are several articles specifically on this subject. You may want to search Murthy chat and the UCIS memoranda . Further you should also consult a lawyer.