Need Help to Trasfer H1b....

[lucky_7]

Hello everyone,
Right now i am on h1b with the consulting company A. And got offer from company B where i am working right now as a consultant. I gave my all documents to the attornay of company B to trasfer my H1b. After looking all my docs he raised below questions so please help me regarding this.

1. My current Employer (company A) filed for my LCA to his company's address when i came to USA in Jan-07. After that i got job in another state and he didn't file for my LCA. So the attorney was asking for that LCA. He said without that LCA he can not File. So, regarding this i talked with Company A and they applied for my new LCA since from endof March '08. But i was working in that state from last April'07.

---So is this create a problem when i will apply for the H1b Transfer? or can i apply for h1b trasfer with the new LCA?

2. Attorney From Company B gave me another option to apply for the new h1b application. So if i will apply and will get approval then from when can i start to work with company B? Do i need to wait until october '08?

Please help me to solve this problem.

Thanks in Advance...

[DMX17]

1.Every time there is any material change in job such as location, a new LCA has to be filed and the H1 petition be amended.

(E) Amended or new petition . The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.

Looks like your employer did not do this until recently. I have no idea about whether this might create any problems. Experts, please reply based on your experiences.


2. An H1 transfer is a new petition not subject to cap. A new LCA, anyway, is required by employer B before they file your H1 “transfer”. You do not need to wait till Oct 1st since this is an H1 transfer and you may begin working under employer B as soon as your H1 petition reaches USCIS i.e upon Fedex delivery.

[lucky_7]

Thanks for reply, But the attorney of Company B said "We can file for a new H-1B petition for you. we will ask for H-1B classification and ask that a consular post aboard be notified. Let me know if you like that to be a post in Canada, India or some other country. You can then apply for a visa there and re-enter the country with an H-1B visa entitling you to work for company B. In such cases we do not have to show that you have maintained status or not engaged in unauthorized employment (close to the same thing)."

So, In this case is it consider to be new application for the H1b or just H1b Transfer? And if it is new petition then can i work for company B as soon as they ll get approval for the petition or i have to wait for 1st Oct '08.

[DMX17]

What the lawyer is suggesting is that employer B file an H-1B with Consular Processing. This H-1B will not be subject to cap since you were already counted in the past and have H1 time left. This is considered a new application BUT will NOT be subject to cap.

To start working under employer B, you will need to go out of the U.S. and re-enter using a valid visa. To this end, if your current H1 visa is unexpired at the time you want to start for employer B after the H1 with CP is approved, you can just go to Canada/Mexico/Home Country/Any Country other than U.S and re-enter using the unexpired H1 visa. You need not go for stamping again if your current H1 visa on your passport is unexpired. IF your visa will not be valid, then you should specify the consulate that you want to go to for stamping.

[lucky_7]

My current H1 visa is valid till next year.It means if my Company B will apply for new h1b application and as soon as i will get my petition approval i have to go out side of the country anywhere and comeback after that i can start work with Company B. I don't need to wait until 1st oct-08. right?

Thanks

[DMX17]

My current H1 visa is valid till next year.It means if my Company B will apply for new h1b application and as soon as i will get my petition approval i have to go out side of the country anywhere and comeback after that i can start work with Company B. I don't need to wait until 1st oct-08. right?

Thanks

Correct.

You will get a new I-94 when you re-enter.

BTW, on a side note, the FY2009 (that start Oct 1, 2008) cap has been already reached.

[lucky_7]

thanks a lot to help me.

But wht it means
"BTW, on a side note, the FY2009 (that start Oct 1, 2008) cap has been already reached."

[DMX17]

thanks a lot to help me.

But wht it means
"BTW, on a side note, the FY2009 (that start Oct 1, 2008) cap has been already reached."

I felt that you were concerned about filing a cap-subject brand-new H1. You don't need a brand new H1.

[lucky_7]

Thanks but i am not planning to filing brand new H1b. I already have so i just need to apply for just change of employer with the new petition. That was mentioned by attorney of company B. i am confused about only if he ll apply for my new petition then when i have to go out of country and come back n start work. But u mentioned abt this in previous conversation so now i am cleared.