H1B Approved; Need to change Employer

[Roy123]

Hi -
I would really appreciate if you any one can help me with my questions
My H1B is approved I-797A via Employer A, but i want to shift to employer B who is ready to give me better salary. Can i change to Employer B without working for Employer A, will there be problem while stamping ?

Thanks,
Roy

[shervin143]

You can do that. No issues. I am guessing you are currently not in H1B status and your actual H1B effective date is Oct 1st or later.

[Roy123]

I'm in US on F1 and H1B will start on Oct 1 2015

You can do that. No issues. I am guessing you are currently not in H1B status and your actual H1B effective date is Oct 1st or later.

[raghvi]

I'm in US on F1 and H1B will start on Oct 1 2015

Recent Requests for Evidence from USCIS appear to follow a different interpretation prohibiting the employee from taking advantage of the first approval prior to October 1st. Here is what an actual RFE says:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.”

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC **** **** ** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed.

This is my opinion not legal advice.

[shervin143]

These are case by case basis and it totally depends on who is handling the case at USCIS. There is no hard requirement to wait until Oct 1st to initiate the transfer (Although it is not fair to the employer who filed the petition and secured a CAP for you). You can initiate the transfer now. If it gets approved (you have 4 more months), you are good to join the new employer. If it gets denied or results in an RFE (RFE / Denial can be for other reason too), you still have employer A's petition and you join employer A as of Oct 1st.

Recent Requests for Evidence from USCIS appear to follow a different interpretation prohibiting the employee from taking advantage of the first approval prior to October 1st. Here is what an actual RFE says:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.”

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC **** **** ** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

Although this type of petition was routinely accepted in the past, it is recommended that any change of employer request wait until after October 1st. Then an H-1B petition requesting change of employer (also known as an H-1B transfer) can be filed.

This is my opinion not legal advice.

[raghvi]

These are case by case basis and it totally depends on who is handling the case at USCIS. There is no hard requirement to wait until Oct 1st to initiate the transfer (Although it is not fair to the employer who filed the petition and secured a CAP for you). You can initiate the transfer now. If it gets approved (you have 4 more months), you are good to join the new employer. If it gets denied or results in an RFE (RFE / Denial can be for other reason too), you still have employer A's petition and you join employer A as of Oct 1st.

I agree its case by case. But if the petition gets denied and employer A also withdraws their petition then one is no longer considered cap exempt. So its better to assess the risks and act accordingly.

This is my opinion not legal advice.

[shervin143]

Well, there is always that risk. If the CAP subjective H1B is revoked prior to the H1B effective date, then a transfer based on the H1B is not possible. A transfer can however be initiated without the employer being notified (USCIS will never inform the previous employer when a transfer is filed using their petition).

The RFE related to changing employer prior to the H1B effective date on a newly issued CAP is a new regulation by USCIS that has started this fiscal year. In previous years this has never been an issue. These RFEs are currently issued on a case by case basis (Totally depends on who is handling the case @ USCIS). I think it is fair to have introduced this regulation to protect the employer who took the pain to file the initial petition that is subjected to CAP.

[Roy123]

Hi All -
I really appreciate your reply. The reason for change is Employer B is giving me better salary.
Will the ideal case be staying with Employer A for 1-2 months and than moving to Employer B , will that mitigate the risk of RFE ?

[shervin143]

Yes.

Hi All -
I really appreciate your reply. The reason for change is Employer B is giving me better salary.
Will the ideal case be staying with Employer A for 1-2 months and than moving to Employer B , will that mitigate the risk of RFE ?