H-1B Transfer to New Employer and Travel to India

[scouty]

Hi,

I joined a company on OPT back in Nov 2013. The company applied for H-1B and got it approved on Oct 1, 2014. I quit the company Oct 17, 2014 as I was offered a job on same position but better salary at different company. Now, the second company is in process of filling for H-1B transfer. They have filed for Form 9035E - Labor Condition Application for Non-immigrant Workers and told me once its approved (may take up to another 10 days), they would be able to file for my H-1B transfer petition.

I've few question, hoping someone would be able to help me out.

1. I was told by someone that for H-1B transfer, it is not required for second company to file for 9035E (Labor Condition Application). Since I already have H-1B approved, the change of employer H-1B petition can be filed as soon as possible. Is this true?

2. Am I legal to stay in US, since second company is yet to file H-1B petition for change of employer? I was told that on H-1B one can legally stay for 30 days after last to employment in previous company.

3. Since all this paper work is taking longer than expected, I do not want to stay illegally. Can I go back to India and wait for second company to file H-1B transfer petition. Once the new petition is approved, return back after getting my visa stamped from India? Would there be any complications, if I leave US on my previous employer I-94 departure card and without getting H-1B transferred to new company?

Thanks for your time and help!
Sudeep.

[raghvi]

Hi,

I joined a company on OPT back in Nov 2013. The company applied for H-1B and got it approved on Oct 1, 2014. I quit the company Oct 17, 2014 as I was offered a job on same position but better salary at different company. Now, the second company is in process of filling for H-1B transfer. They have filed for Form 9035E - Labor Condition Application for Non-immigrant Workers and told me once its approved (may take up to another 10 days), they would be able to file for my H-1B transfer petition.

I've few question, hoping someone would be able to help me out.

1. I was told by someone that for H-1B transfer, it is not required for second company to file for 9035E (Labor Condition Application). Since I already have H-1B approved, the change of employer H-1B petition can be filed as soon as possible. Is this true?

2. Am I legal to stay in US, since second company is yet to file H-1B petition for change of employer? I was told that on H-1B one can legally stay for 30 days after last to employment in previous company.

3. Since all this paper work is taking longer than expected, I do not want to stay illegally. Can I go back to India and wait for second company to file H-1B transfer petition. Once the new petition is approved, return back after getting my visa stamped from India? Would there be any complications, if I leave US on my previous employer I-94 departure card and without getting H-1B transferred to new company?

Thanks for your time and help!
Sudeep.

1. One does need a new LCA, though the H1 petition itself is cap exempt.
2. There is no such 30 day rule. To be safest, you should have quit only once the petition approval was done.
3. If you are getting paid by B, and B's petition eventually gets approved, you are good, otherwise you would go out of status. So technically if the petition gets denied then you would be out of status since your last pay day for A.

Leaving US and going for fresh stamping is generally the best approach but I would advise you wait, ask employer to file H1 petition in premium and if they dont then only plan to leave and find a better employer too. Talk to the employer first about upgrading to premium.

This is my opinion not legal advice.