Is H1 Transfer from company A to B to A required?

G

gb04

Registered Users (C)
I did an H1 transfer from company A to B. Now I want to go back to company A; yes I know, I should make up my mind already ;-)

Anyway, do I need to file another transfer from B to A or can I get on A's payroll straight away as I did have a valid H1 from them before this? Btw, its been about six months since I initially transfered from A to B.

Thanks all.

-gb
 
Originally posted by gb04
I did an H1 transfer from company A to B. Now I want to go back to company A; yes I know, I should make up my mind already ;-)

Anyway, do I need to file another transfer from B to A or can I get on A's payroll straight away as I did have a valid H1 from them before this? Btw, its been about six months since I initially transfered from A to B.

Thanks all.

-gb
Click to expand...

You need not transfer H1 back to company A if ALL of below is true:

1. Company A has not withdrawn your H1 petition,
2. Your job title, job description, job location and salary match whatever was shown on the LCA filed by company A.
3. Company A's H1 approval is still valid.
 
Thanks for the quick reply!

Well, to clarify my position better:
1) Company A has not withdrawn my H1, so TRUE
2) The position I am offered in company A is the same as before and the same as I am working in right now in Company B, so TRUE
3) The third point is what I am not sure about so that's why I posed my question. I do not know if Company A's H1 approval is still valid. If you mean INS (or whatever its called now) validity, yes its valid till 2005. But I do not know if its valid in the sense that its a transfer case from A to B so does INS automatically invalidate the original H1 in a transfer case? Do they take out the original "EAC" number from their database? That is what I want to know. Basically, does a transfer mean having 2 valid H1s or does it mean invaliditing the original one for the new one. In which case how can I go back to working for the original company without filing a new transfer as INS would consider company A's H1 void since I transfered. Appreciate if you clarify this point.

Thanks again for your help.
 
The only way you can determine whether the company A visa is valid or not is to have continuous paystubs with company A. If you hve not been receiving paystubs from company A ( the period when you were with company B) more than a month, then it is advisable to do a new transfer.
 
Of course I am not receiving paystubs from company A since I left them when I moved to B. So as per your suggestion I would be better off filing a transfer.

But, (sorry for dragging this longer) by suggesting that if i DID have paystubs from company A even at this stage I may be okay without the re-transfer, are you hinting that an H1 transfer does not void the original H1 automatically in the eyes of INS, which was the essence of my question. Or its not that simple or black & white?

Thanks all.

-gb
 
Originally posted by gb04
Of course I am not receiving paystubs from company A since I left them when I moved to B. So as per your suggestion I would be better off filing a transfer.

But, (sorry for dragging this longer) by suggesting that if i DID have paystubs from company A even at this stage I may be okay without the re-transfer, are you hinting that an H1 transfer does not void the original H1 automatically in the eyes of INS, which was the essence of my question. Or its not that simple or black & white?

Thanks all.

-gb
Click to expand...

The job you are going back to at company A should match whatever you had at company A, not company B. It means same job title, same salary, same location, everything exactly same as what you had in company A to begin with.


An H petition continues to be valid until it expires or is withdrawn. In your case neither of these is true. You can therefore use your H1 with company A until it expires in 2005 without doing anything. You can hold multiple valid H1's at any given time.
This is just my understanding, not a legal opinion.
 
I think NKM is wrong.
My deduction is also partly based on the fact that you can be on 2 h1s at the same time. And at some point of time you can ditch one to take another seamlessly.
 
I am afraid I am a bit confused now. I guess this issue is not very clearly understood or maybe its just me ;-). The problem is the term "transfer" leads me to think "movement" rather than "creation" of another H1. That maybe the reason it does not effect the H1 quota.

Correct me on this jaxen: If transfer indeed mean having two valid H1s where you could work for one or the other, couldn't I just move back to Company A without having recent paystubs as I am in status throughout as I have recent paystubs from Company B of which I also hold a valid visa. Isn't it fair to deduce that as long as H1s are valid for both companies I am maintaining status by being on one payroll or the other.

This is how I see it as: either a person has two valid H1s in a transfer case or not and if he/she does, the status can be maintained by being on one payroll or the other, at any given time and seamlessly move between the two. If the transfer does not mean having 2 valid H1s, then of course the question does not arise and another transfer has to be filed.

Thats the reason why I do not understand the signficance of having recent paystubs from company A at all as that would mean the impossible scenario of working full time for 2 companies. (unless the transfer was done less than a month ago as you pointed out)

Thanks jaxen, nkm.

-gb
 
My guess (not prefessional opinion) is you can show up at company A and begin working using company A's H1 without doing anything else. You can verify this with the attorney who processed your H1 with company A or with A's HR. That will clear up the confusion.
 
Technically, you can go back to company A without filing a "transfer" if:

1. Company A has not withdrawn your H1 petition,
2. Your job title, job description, job location and salary match whatever was shown on the LCA filed by company A.
3. Company A's H1 approval has not expired.

That being said, I would suggest that it may still be a good idea to file a "transfer" again since it would clarify your status. It also would help to protect Company "A" from you if you at some point attempt to sue them for having you illegally benched during the period that you were working for Company "B" or in the event of an INS/DOL investigation. They also should cancel the old visa but they should have done this already.

If you were not employed by Company "B" for very long, it may be safe to just rejoin Company "A" but there could be issues with your I-94 expiration since Company "B" probably extended your status when they applied for a "transfer".
 
So Jim, If I work for a company (A in this example) On and Off (1-2 months eitherway), I am fine???!! Does not match the paystub requirement test that all lawyers subject h1 transferees to...

You can work under 2 H1Bs- no problem from INS, but there might be contractual problems, which INS cannot settle.

No gb04, how can company B paystubs be substituted for company A paystubs?

In a transfer case you only have only one H1, not two. So yes you need to file a new transfer back to A. I gave an option where instead of company A spending another 3K can pay you a month's salary and claim the old H1 to be valid...It is a way out that is all, not immigration (absolute) advice :))
 
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