H1B approved without change of status - employer change - please help

[Sai Charan]

My H1B was filed by Company A and was approved this year without change of status.

I am currently on OPT 17 month STEM which is valid till DEC 2015.

I got another offer from company B. Now they are saying they cannot apply for transfer as I am not yet on H1B visa and my status wont change automatically. They are asking me to go to my home country, get it stamped and come back on H1 status which is not feasible for me.

Another option people at company B are saying is, after I join in mid October, they will apply for a H1B visa for me by end of October 2014. As I already have a approved visa, they are saying I will be exempt from CAP and USCIS will approve this H1B without change of status. Then whenever I can go to my home country, I can get it stamped.

I am not entirely sure about the above option. When I resign from my current company A, will USCIS cancel my current H1B visa? If so, when company B files it at end of October, wont it be a problem?

Thanks a lot !!

[Nattybone]

Hello, Sai.

What i understand is that one could switch status while being inside USA. It is only when one exits USA that one needs to have the same visa stamp as his status in USA. E.g.: Someone enters USA on F1 visa and does a COS (Change of Status) to H1B, this person is absolutely fine to continue living in USA on H1B without having an H1B stamp on the passport. When this person leaves USA, then he cannot enter on the earlier F1 visa, he will need to have the same stamp on the passport as his legal status in USA which is H1B.

Further, please maintain your legal status at all time in USA. If your legal status is OPT - which is dependent on you having a job, then resigning would, i would like to believe, make you lose your legal status. Your future employer, as your H1B is approved, should file for a COS and I797 for you. Depending on the date of employment and desired COS time, you will get a response from USCIS. Please do maintain your legal status in USA at all time.

Also, your H1B status cannot kick-in before October 2014 (which is not far, but just fyi). You are good to switch your status to H1B while being in USA.

I hope this helps.

Personal opinion.

Cheers,

My H1B was filed by Company A and was approved this year without change of status.

I am currently on OPT 17 month STEM which is valid till DEC 2015.

I got another offer from company B. Now they are saying they cannot apply for transfer as I am not yet on H1B visa and my status wont change automatically. They are asking me to go to my home country, get it stamped and come back on H1 status which is not feasible for me.

Another option people at company B are saying is, after I join in mid October, they will apply for a H1B visa for me by end of October 2014. As I already have a approved visa, they are saying I will be exempt from CAP and USCIS will approve this H1B without change of status. Then whenever I can go to my home country, I can get it stamped.

I am not entirely sure about the above option. When I resign from my current company A, will USCIS cancel my current H1B visa? If so, when company B files it at end of October, wont it be a problem?

Thanks a lot !!

[Sai Charan]

Thanks Nattybone for your valuable suggestion. I have this one final question lingering in my mind ..can you please clarify ..

-> I'd be in F1 status in October as there is no automatic change of status. When I switch employer and the new company files an H1B by end of October 2014 (not a transfer as my status is still F1 ) , does USCIS count me under CAP exempt as I already have a h1 from employer A ?

Hello, Sai.

What i understand is that one could switch status while being inside USA. It is only when one exits USA that one needs to have the same visa stamp as his status in USA. E.g.: Someone enters USA on F1 visa and does a COS (Change of Status) to H1B, this person is absolutely fine to continue living in USA on H1B without having an H1B stamp on the passport. When this person leaves USA, then he cannot enter on the earlier F1 visa, he will need to have the same stamp on the passport as his legal status in USA which is H1B.

Further, please maintain your legal status at all time in USA. If your legal status is OPT - which is dependent on you having a job, then resigning would, i would like to believe, make you lose your legal status. Your future employer, as your H1B is approved, should file for a COS and I797 for you. Depending on the date of employment and desired COS time, you will get a response from USCIS. Please do maintain your legal status in USA at all time.

Also, your H1B status cannot kick-in before October 2014 (which is not far, but just fyi). You are good to switch your status to H1B while being in USA.

I hope this helps.

Personal opinion.

Cheers,

[Nattybone]

Hello, Sai.

I am not clear how you have an H1B approved this year which is not kicking-in in October. Would you explain a little about your H1B. When did you get this? Who is holding it? What is the duration? etc.

Assuming this is some old H1B (not older than 6 years) which you have, the next time your H1B is filed by an employer (within 6 years from last H1B ststus) it will be cap-exempt. You do not fall under the quota as you featured in the H1B quota for the year when you were granted H1B.

I hope this helps.

Wishing you luck. Personal opinion.

Cheers,

Thanks Nattybone for your valuable suggestion. I have this one final question lingering in my mind ..can you please clarify ..

-> I'd be in F1 status in October as there is no automatic change of status. When I switch employer and the new company files an H1B by end of October 2014 (not a transfer as my status is still F1 ) , does USCIS count me under CAP exempt as I already have a h1 from employer A ?

[Sai Charan]

Hello, Sai.

I am not clear how you have an H1B approved this year which is not kicking-in in October. Would you explain a little about your H1B. When did you get this? Who is holding it? What is the duration? etc.

Assuming this is some old H1B (not older than 6 years) which you have, the next time your H1B is filed by an employer (within 6 years from last H1B ststus) it will be cap-exempt. You do not fall under the quota as you featured in the H1B quota for the year when you were granted H1B.

I hope this helps.

Wishing you luck. Personal opinion.

Cheers,

Thanks Nattybone for the reply.

This is a fresh H1b (not an extension or old one) which is filed and approved in April 2014. It was filed without change of status (no auto change of status on October 1st 2014). The H1 will be activated only when I move out of country and get a stamp.

So now when I change the employer, what happens to this visa? The new employer said a transfer is not possible as I wont be in H1 status. They will file a new petition with USCIS by end of October and said I will be under CAP exempt as a H1 visa is already approved for me this year. Can you please provide some more input on this ?

[Nattybone]

Hello, Sai.

I understand now. I believe an employer should be able to file an amendment to your H1B and try for a COS from F1 - OPT to H1B. What is required to switch status is maintaining a legal status. So, i feel you are good with an amendment petition for COS. And, ofcourse this will be cap-exempt.

Personal opinion.

Wishing you luck.

Cheers,

Thanks Nattybone for the reply.

This is a fresh H1b (not an extension or old one) which is filed and approved in April 2014. It was filed without change of status (no auto change of status on October 1st 2014). The H1 will be activated only when I move out of country and get a stamp.
So now when I change the employer, what happens to this visa? The new employer said a transfer is not possible as I wont be in H1 status. They will file a new petition with USCIS by end of October and said I will be under CAP exempt as a H1 visa is already approved for me this year. Can you please provide some more input on this ?

[aadikulk]

F1-OPT - H1-B Petition Approved 2014 April - 221g While Stamping - Change of employer

Hi guys,

I read thru this thread and it was really helpful. Thanks so much.

I had couple of queries too.

1. Sai - I din't know a petition can be filed without change of status. As Nattybone said, I was also under the impression H1-B period would start from october 1st following the petition approval in April overriding my F1-OPT that was approved for 17 Months(Valid till July 2015) . I recently visited India for stamping(First time H1-B) but I was issued Blue 221g requesting for client letter. CAN I ENTER USA WITH MY H1-B UNDER ADMINISTRATIVE PROCESSING AND F1-OPT POSSIBLY REVOKED ON OCTOBER 1ST. I don't think so, but could I've entered USA before october 1st on F1-OPT, but my H1B under administrative processing ???? I had my visa interview in september 1st week and I was issued 221g.

F1-OPT would be AUTOMATICALLY reinstated(with its full validity, in my case till July 2015) if H1-B is revoked before october 1st.
If H1-B is revoked after october 1st, Apply for reinstatement.


2. Nattybone - This topic has been more or less discussed in this thread, but can you please clarify once. If I switch my job and get a new position in USA being in INDIA, will my new employer be able to transfer my approved H1-B petition and can I get stamped under new employer and enter USA ??

3. If I switch my job and get a new position in India itself, will my new employer be able to transfer my H1-B petition if he has some opportunities for me in USA in future.

Just want to mention again - I've been issued 221g and my h1-B is currently under administrative processing.

4. Can my current employer withdraw/revoke my H1-B petition. If my visa is rejected as a result of administrative processing, Will my approved petition go totally waste. Will my new employer not be able to transfer it or atleast file a cap exempt petition ?

Sorry for such a big post and thank you so much.