Transfer of employer on first H1B with effect from October 2008

H

hestia

New Member
Hello,

I am on a H4 visa, and got a job offer from a university in April 2008. They filed for my non profit H1b which got rejected for not explicitly stating that i was qualified for the job. They filed for an appeal, but it is still unanswered.

I got my H1B approval through a consulting company and can start working from October 1st. The university has contacted the consulting company and has decided to transfer my employer to them.

Please advice me if i can transfer my employer before october 1st, 2008 - as this is my 1st H1b and first employer? What will happen if things gets delayed after 1st of October 2008?

Is the transfer of employer process to be completed by my new employer or by me? What needs to be done for changing employers?

Thank you for the help.
 
You cannot "transfer" until you are in status. You are expected to work with the consulting company unless another employer files a new petition not under cap and it is approved before Oct 1. If not, you can begin work for the consulting company and move one you receive the approval notice. Remember that priority processing takes 15 days so that a new petition under PP should be completed before Oct 1.

The paperwork is done by the employer. If you are uncertain about the process, you should speak with an attorney.
 
The fundamental problem in your case seems to be related to the appropriate response your University will have to provide to USCIS, in terms of the RFE that was issued earlier. If the University presented substantiative facts that you are qualified to the job, you are safe.

Even though your University can expedite the processing of pending H-1B by attaching a premium processing request (will cost $1000, form I-907) now, please understand that the H-1B approval of a different consulting company effective 01-OCT-2008 may not be needed in your case. That H-1B is not effective until 01-OCT-2008 and there is nothing in the law that states that you "have" to work for that employer before attemping for a new H-1B prior to the effective date. A H-1B can be filed at any time and at the time of filing, the alien should be in a valid non-immigrant status.

The previously approved H-1B would only be useful to determine whether you should be counted against the fiscal year cap, which does not seem to apply in your case, because you are applying for a non-profit position (I am assuming that this is a cap-exempt case; even if the assumption is wrong, it is not a big issue). Of course, if you are in a same situation after 01-OCT-2008, the situation is completely different. In that case, you should be in a valid status, i.e., working for H-1B, i.e., prove your status by showing pay stubs with the previously approved H-1B employer. This is the reason why it makes sense to go for premium processing -- faster adjudication.
 
Thank you for the reply.

The university is considered by uscis as non profit but it was bought by an individual 4 years back. Hence it is now a for profit body and works just like a registered company. In fact they had applied for Premium Processing for me. The appeal reached uscis on july 17th, 2008 but has not yet been answered, and so i have lost hope on that.

So you mean to say that i cannot initiate my H1b transfer from consulting company to university before October 1st. Is this coz it is my first h1b - can i initate the transfer after a few months? If so please advice on the earliest when i can initate the same.

Thanks for the help.
 
People really need not to be confused by the term "transfer".. There is no such thing like "transferring" H1 from one employer to another.
Every petition including "transfer", extension, and brandnew petition under quota are NEW PETITION.

Obviously, CIS wants to know if you are qualified to the position. The same rule applies even though you apply under quota(I mean, "Transfer") and if CIS has doubt on your qualification, you'll be stuck for the same reason regardless of being under quota.
So, it does not make any difference to file w/ or w/o quota. Wait for CIS's response.
 
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hestia said:
Thank you for the reply.

The university is considered by uscis as non profit but it was bought by an individual 4 years back. Hence it is now a for profit body and works just like a registered company. In fact they had applied for Premium Processing for me. The appeal reached uscis on july 17th, 2008 but has not yet been answered, and so i have lost hope on that.

So you mean to say that i cannot initiate my H1b transfer from consulting company to university before October 1st. Is this coz it is my first h1b - can i initate the transfer after a few months? If so please advice on the earliest when i can initate the same.

Thanks for the help.
Click to expand...

Now that you are sharing it is not a non-profit organization anymore, your approach should be to provide all accurate evidence that CIS asked and wait for adjudication. If CIS does not respond within 15 calendar days, you have an option of following up.

If you file for a new H-1B petition on behalf of the University (or now a for-profit organization), you will most likely have same issues.
 
Thank you for the reply.

My problem here is that, i am not very inclined to the non profit H1B which has got restrictions - which will let me move to only companies or organizations that are of the same kind (non profit) in the future. I will not be able to work for an IT company for the next 3 + renewed 3 years - unless i apply for the regular H1B again.

So i want to keep my regular H1B which i got from the consultant, which is not bound by such restrictions. Since the university offer is the best i can get and they are not willing to take me in as a contractor but only as a permanent employee -i was planning to take it up. So my goal was to keep the regular H1B + work for university. Thats why i was enquiring about the transfer.

I am willing to take a chance with the university - provided i dont lose my H1B. So suppose i apply again through the university with a copy of my existing approval from the consulting company to change my employer and it gets denied. Then will i lose my status ie., my H1B? will i lose both employers - the university and the consulting company? will my visa status revert back to H4?

If i lose my H1B in the process, then i dont want to take a chance at all coz working is more important to me than anything else.

Please advice me on this.

Thank you for the help.
 
These questions are confusing because of the way they were ordered. I will take one more attempt to clarify the situation for you:

1 -- a H-1B, once approved, remains valid (just the petition, mind you) until the expiration of the H-1B or revocation request from the petitioner, i.e., employer. In your case, the H-1B from consulting company will be valid until its expiration date, if your consulting company is not revoking it

2 -- you are authorized to work for the University, if you have a H-1 applied by the university that was approved by USCIS. You cannot use any other H-1s to work for the University and vice-versa

3 -- if you wish to apply for a regular H-1B in next 6 years, i.e., not a cap-exempt employer, you will not be counted against the quota because you were already counted in the last 6 years. This is where your consulting company's H-1B will be helpful, as you would not be subject to the yearly quota

4 -- if you wish to apply for a regular H-1B in future, please note that at the time of applying that H-1B, you should be in valid non-immigrant status

5 -- you must have been in a valid non-immigrant status even at the time of the H-1B that the university has applied. If this H-1B petition is eventually denied, you will continue to remain in the previous status until its respective expiration date

6 -- please exercise caution while concluding what is your non-immigrant status at the time of applying H-1B -- it is either the status shown on your latest I-94 that was issued by the port-of-entry when you entered US or the action taken by USCIS when you filed a petition with them, whichever is later is to be considered. The action taken by USCIS must not just be a petition approval, but a petition approval + change of status. This can be concluded by checking if the approval notice (I-797) has an updated I-94 at the bottom of the notice
 
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