6

Background: This question is in U.S.'s context. I have a friend whose H1-B visa petition was approved this year. His petition was in the consular notification mode (i.e., he must go to a designated U.S. consulate for the Visa to get in effect.). His status didn't automatically change to H1B on 1st October, and he is currently on STEM-OPT (F1 visa).

Question: If he changes employer now, before him getting the H1B visa stamped (i.e., he is not on H1B status yet.), can his new employer get his H1B transferred to them?

Please feel free to ask for clarifications.

P.S.: Writing on behalf of the friend as he is paranoid to ask on his own in the open.

Chor Sipahi
  • 237
  • 1
  • 5
PHcoDer
  • 332
  • 1
  • 9

2 Answers2

0

TL;DR

If he changes employer now, before him getting the H1B visa stamped (i.e., he is not on H1B status yet.), can his new employer get his H1B transferred to them?

Yes.

It matters not if you already got a visa sticker for your H1b in order for a new employer to apply for a new petition for you under the existing cap allocation.

Longer

The article you provided explains that clearly.

The sentence:

"The individual must be under H-1B status."

is wrong. It should read "The individual must have an approved H-1B petition".

For most people under H1b these would be the same thing, but not in the case you described for your friend. Using the terms "H1b Status" or "H1b visa" for the approved H1b petition is pretty common, but sometimes the semantic differences become confusing - as in this case.

Here's the source (USCIS):

You must meet the following criteria to be classified as an H-1B temporary worker:

  • You must have an employer-employee relationship with the petitioning U.S. employer.
  • Your job must qualify as a specialty occupation by meeting one of the following criteria:
  • A bachelor’s or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for the position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (For more information, see 8 CFR section 214.2(h)(4)(iii)(A)).
  • Your job must be in a specialty occupation related to your field of study;
  • The petitioning employer must submit evidence that the U.S. Department of Labor has certified a labor condition application;
  • You must be paid at least the actual or prevailing wage for your occupation, whichever is higher; and
  • An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

Very Long

It appears that there's some confusion on the matter, so after I answered the question, I'll clear up some of the confusion.

Visa vs Status

Visa is a sticker attached to your passport. It is issued by a US Consulate, and is a document shown to the CBP officer at the port of entry to confirm that the consulate has evaluated you and found you qualified to enter the country with a given status (H1b in this case). That's the only use for the visa, it has no other use and serves as evidence to nothing but the fact that at some point the consulate made that determination.

Status is given to you by the CBP officer at the port of entry, or by the USCIS if you're changing status from within the country. The evidence of your status is the form I-94. It may or may not match the status listed on the visa you used to enter. It may or may not be valid for the time beyond the expiration of your visa.

H1B Approval

What's being approved is the employer's petition to hire you as a nonimmigrant employee, which gives you the eligibility for H1b status. The approvals are subject to annual caps (unless cap-exempt employer), and for an approved petition a cap has to be allocated.

Once the petition has been approved you can either ask for an immediate status change (then I-94 with the new status would be attached to the approval notice) or a consular processing (in which case the approval notice will have details of the consulate to which the case was forwarded for visa considerations, and your current status will stay the same if you're already in the country). Once the petition is approved for a certain year, you can change the status to it once you started your employment and all the other conditions are met (including the year start, which for immigration purposes starts on Oct 1st).

If you're already in the US under a different status (F1 in this case), you may remain in that status even if the H1b petition has been approved. But if you didn't change status to H1b within a year from the approval, the approval would be revoked and the quota cap allocation removed. It can, however, be "recaptured" under certain conditions.

There's no requirement for you to be in any specific status (or in the country at all) to transfer your cap allocation from one petition to another (see the above USCIS link).

H1B "Activation"

There's no such thing.

H1b Visa Transfer

No such thing either, despite the many reference to it you may find online.

H1b Status Trasnfer

You'll laugh, but again - no such thing.

So What Is It???

What happens is that the new employer applies for a new H1b approval for you. The petition the new employer submits is not for a transfer or a change - it's a new petition. See details here.

Why do people consider it as "transfer" then?

Because quotas. What happens is that if an H1b quota has been allocated to you, you can use it on as many petitions as you want. The only condition is that you only work for one employer at a time. Thus if you already have an H1b, the new employer doesn't need to get a new cap allocation, you already got one.

This is why transferring from a cap-exempt employer to non-exempt employer is much more difficult than transferring between two employers with the same cap-exemption status.

littleadv
  • 10,845
  • 1
  • 24
  • 39
  • 1
    Any chance of explaining further (eg a brief summary of how), or providing a link to an official source? – Traveller Dec 15 '21 at 19:41
  • @Traveller the same way any other h1b transfer works, I'm not sure why your friend is paranoid. Visa stamp has no bearing on his status, it's only used when you enter the US. – littleadv Dec 16 '21 at 00:21
  • 1
    Why your friend? One word answers are normally disapproved of on this forum. At the very least you could add the information in your comment to the answer. – Traveller Dec 16 '21 at 04:13
  • @Traveller Sometimes it is what it is. I can, of course, write a lot of letters to work around the 30 chars minimum restriction, but the actual answer is... "yes". It's a yes/no question, and the answer is, accordingly, yes. I didn't realize you're not the OP, sorry. Not your friend, but the OP's friend. – littleadv Dec 16 '21 at 05:02
  • 3
    I'm not sure this is correct. An H1B visa can be transferred, and perhaps even a petition can be transferred if the petitioner already holds an H1B. But it's unclear to me that a petition can be transferred without already having an H1B (OP's friend is on F1). – ouflak Dec 16 '21 at 07:30
  • @ouflak from the OP: " I have a friend whose H1-B visa petition was approved this year.". The OP already holds an H1B, they just didn't do a status transfer to it. – littleadv Dec 16 '21 at 18:42
  • @littleadv Thanks for the response. Could you also please share some supporting links from the government website? If you are aware of any. I will share those with my friend for detailed study. Thanks once again. – PHcoDer Dec 20 '21 at 15:19
  • @PHcoDer you're asking if there's a problem - there's none. I can't prove a negative. Why is your friend concerned? The rules for applying for the new H1b approval once you already got one are the same regardless of your current status or what stickers you collected in your passport. – littleadv Dec 21 '21 at 08:54
  • This is wrong answer: One cannot transfer H1B till it is not activated: https://www.immi-usa.com/h1b-visa/h1b-visa-transfer/ – PHcoDer Dec 21 '21 at 20:18
  • @PHcoDer one can and one did. From personal experience. What in that article made you think that there's a thing called "activation" for H1B? – littleadv Dec 21 '21 at 20:36
  • @PHcoDer take a look at my edits, let me know if you're still confused – littleadv Dec 21 '21 at 21:00
  • @Traveller I owe you an apology. I didn't realize the level of ineptitude people may have when posting on this site. – littleadv Dec 21 '21 at 21:26
  • @littleadv I know that visa stamp doesn't matter. But for changing the employer one needs to be on H1B status. If, H1B petition is approved as consular notify (CN) then one needs to get the stamp to come in the H1B status (that is what I mean by "activation".). So, what you are saying will work only when their H1B petition is approved in Change of Status (CoS) mode. With this type of approval, even if they don't have a stamp they are still in H1B status and then they can transfer the employer. Please read the question carefully. It is about the CN without a stamp not CoS. Hope this clarifies. – PHcoDer Dec 23 '21 at 03:32
  • @littleadv also, what you are saying that the H1B if not changed status within a year then expires is contradicting to what HRs of my friend's company are saying. According to them, they can change the status to H1B anytime in the period it is granted for. – PHcoDer Dec 23 '21 at 03:36
  • @littleadv, the link you have given (https://visaguide.world/us-visa/nonimmigrant/employment/h1b/h1b-transfer/) also mentions that you need to have H1B visa (meaning being in H1B status) for initiating the H1B transfer. – PHcoDer Dec 23 '21 at 03:38
  • @PHcoDer I don't understand why you're arguing with me. If you don't like my response - downvote it and move on. You've done half of that already. But what I'm saying to you is correct. Nothing that you said in your last 3 comments is correct, absolutely nothing. You're wrong on all accounts. – littleadv Dec 24 '21 at 08:06
  • 1
    @PHcoDer re your last comment: you yourself understand that when the site says "H1b visa" they actually mean something else. You conveniently translated it to "H1b status" because it fits your narrative. But that's incorrect. It should be "H1b approval". Or, even more precisely, "H1b visa number". Which, ironically, is exactly what the USCIS says. Not "status", not "visa", but "visa number". Why are you ignoring the USCIS, who actually enforce the law, but prefer your own random interpretation? – littleadv Dec 24 '21 at 08:09
  • 1
    @littleadv, I am not arguing with you. I appreciate your effort in responding. I am trying to clear the confusion by discussion. Chor sipahi, posted the following link in his/her answer: http://forum.murthy.com/topic/134781-h1b-transfer-with-h1b-consular-approval/. This link has the same question like mine. Law professionals have answered contrary to your's. I think confusion is because you are assuming that when a H1B petition is approved for someone they are on H1B status. I did read the USCIS link you shared. It doesn't talk H1B transfers at all. Not sure, if I am missing something here. – Chor Sipahi Dec 25 '21 at 01:58
  • @ChorSipahi I'm not confused, on the contrary, I'm trying to clear the confusion. USCIS doesn't talk about H1b transfers because there's no such thing. That's what I've been trying to explain. Lawyers are always trying to dumb explanations down to simplify complexities. It's much easier to say "you have to be in h1b status" than start explaining what a "visa number" is and why it's relevant, and for 99% of the people the difference would be purely semantic. Your scenario is essentially the only one where the semantics would actually matter. I have been in the exactly that scenario. – littleadv Dec 25 '21 at 07:22
  • @littleadv Check this answer on reddit: https://www.reddit.com/r/askimmigration/comments/rkphc5/comment/hprm5iq/?utm_source=share&utm_medium=web2x&context=3

    It says something on the same lines as what you are saying. Though it still says that it is highly unlikely to get it this way.

    You said you have been in the exactly same scenario and your visa did get moved to a new employer without you being in H1B status. Correct?

     – PHcoDer Dec 26 '21 at 16:17
  • @littleadv, also as you said that one only needs a "visa number" to file a new petition. We don't see anything like a "visa number" in neither the I-797C (Registration selection notice for CAP) nor the I-797B (Approval notice for Consular Notify petition filed by his current employer). They have numbers like "Beneficiary number" (on I-797C) and "Receipt number" (on I-797B). Do you mean one of these by a "visa number"? – PHcoDer Dec 26 '21 at 16:31
  • 1
    @PHcoDer Read carefully what the USCIS quote says: "visa number must be available". You don't see the actual "visa number", but it must be available. This is the H1b quota allocation. The fact that you got your H1b approval for a position that is non-exempt means there's a visa number available for you, and that is why you can reapply for another H1b. Since you only have one visa number available for you, you can only work for one employer at a time, but you can have as many petitions approved with your name on them as you want. – littleadv Dec 26 '21 at 21:47
  • @littleadv Thanks a lot for clarifying this. This is a valuable detail. Many people are stuck in such a situation and your answer can take them out. Most of the law firm portals are replying negatively. Thanks for doing the detailed discussion. Appreciate your patience. – PHcoDer Dec 27 '21 at 18:13
  • @PHcoDer law firms put very generic and simplified things on their websites. But if your employer hired (as in "paid money for the specific case evaluation") an immigration attorney for your specific case and they said it cannot be done - that's a malpractice suit right there. In any case, you as an employee/beneficiary can't actually do anything, it's the employer who files the H1b petition. If you think that my answer is beneficial and I've convinced you of its correctness - feel free to remove the downvote and accept. – littleadv Dec 27 '21 at 22:14
  • @littleadv, I would love to remove the downvote and upvote the answer, for that you will have to make some changes (any little) to the answer. Else, the system wouldn't allow me to do so. – PHcoDer Jan 04 '22 at 21:44
  • @PHcoDer done... – littleadv Jan 05 '22 at 00:23
-1

Check following link for H-1B Visa Transfer Qualifications:

The individual must be under H-1B status to initiate the transfer.

You can also find similar answers on murthy law.

Chor Sipahi
  • 237
  • 1
  • 5