On OPT H1 approved. Need H1 transfer before Oct2008

[macrosky]

I am working in Company A and currently on OPT. My H1 visa has been approved (sponsored by company A). It will be effective on Oct.1st. Now I got a much better job offer from company B, and need to join the new company in July. How can I transfer my H1 visa?

[txh1b]

It is the usual transfer process. You just have to provide that you have already been subjected to the H1b cap and got a visa number. EIther an approval notice or online case status would suffice in addition to the usual H1b docs.

[macrosky]

Thanks! txh1b.
I have already got the H1 visa. So what I need to do is like submitting a new H1 visa application, but include a copy of my current approved H1 visa and some pay checks from my current employer. Is this correct?

I searched online, and find someone argue that one in my situation can transfer only after becoming an H-1B on October 1st. But I do not think that is correct.

[txh1b]

No paychecks needed if you are not on H1b. If you are working on OPT, it is not needed. Whoever said what you heard from the other place is wrong and needs to be told to shut up.
Did you get a visa or a petition approved?

[macrosky]

Luckily, I got the H1B visa, which is sponsored by company A. Now I need to apply a new H1B visa, sponsored by company B, based on my quote. Thanks, txh1b

[C4us]

The problem is the term "transfer" which is generally used on several of the forums when someone is in H1B status, files a petition for a new employer and is able to begin work based on the receipt of the new petition at USCIS. You can basically work before receiving approval of the petition. The paystubs from the old employer are an easy way to demonstrate that the employee is in status because they have been working for the old employer.

If someone is not in H1B status at the time of filing the new petition, he must wait for the approval notice before beginning work on a change of employer. A few people also refer to this as "transfer".

Both involve new filings from your employer. It is essential that you understand the acceptable start date in the two situations - based on the receipt of the petition verses approval of the petition. Someone with a first time approved petition this year cannot be in status before Oct 1, thus the statement that you cannot "transfer" before Oct 1 is true when used in the first context.

Obviously, you can change your employer on OPT at any time since your OPT is not limited to a specific employer. An H1B is tied to a specific employer and so the problem will arise on Oct 1 if you do not have an H1B approval with I-94 for your new employer to supercede the H1B I-94 for your old employer. The safest thing is to ask your new employer to file the H1B petition in PP so you definitely will have the new approval before the Oct 1 start date.

If you have not received the new notice, you will be expected to be employed by your old employer beginning Oct. 1. If it gets to be September 10th or so and you do not have your new I-94, your employer's lawyer should be contacted for further advice.

[macrosky]

Thanks a lot, C4us.
So the best thing I need to do now is:
Let the new empolyer file a new h1 application for me.

The new h1 application attaches a copy of my current h1b visa, showing the USCIS officer that I have got the H1 quota.

The effecitve date is still Oct 1st 2008, and use premium process.

Once I get the new h1 approval, I can safely terminate my current job and start working in the new company.

Is this right? Thanks!

[txh1b]

If you have not received the new notice, you will be expected to be employed by your old employer beginning Oct. 1. If it gets to be September 10th or so and you do not have your new I-94, your employer's lawyer should be contacted for further advice.

Actually, this is not true. Considering the requirements for AC21 portability for H1b, If a filing for H1b transfer was filed before the job start date i.e Oct 1st, the person can use AC21 and start work with employer B without working for employer A.

AC-21 permits certain individuals originally authorized to perform H-1B employment with one employer to commence H-1B employment with a new employer upon the filing (not approval) of new petition if:


(A)
they were lawfully admitted into the United States;


(B)
their employer filed a nonfrivolous H-1B petition for new employment before the expiration date of their authorized period of stay; and


(C)
subsequent to such lawful admission, were not been employed without authorization in the United States before the filing of such petition.

[macrosky]

Thanks a lot, C4us and txhib.
I have some questions regarding the I-129 FORM.

1. in Part 2. Information about this petition.
Basis for Classification
should I choose "Change in previously approved employment"?

2. Prior Petition. If the beneficiary is in the U.S. as a nonimmigrant and is applying to change and/or extend his or her status, give the prior petition or application receipt #:
I should fill in the approved H1 number, right?

3. Requested Action.
Shoud I choose "Amend the stay of the person(s) since they now hold this status"?

I am a little confusing because I am currently still on OPT status. My H1b status will begin on Oct 1st.

[txh1b]

I could suggest answers on this but don't want you to be mislead. YOU should not be filling out the I129 and it should come from your employer or attorney. I would suggest to go with an attorney and PP the case.

[a380x]

All,

I am in a similar position that I am employed by A, and working for their client B. Now the client B seems to be interested in hiring me and I would surely like beomce B's employee.

Employer-A filed H1-B petition, and I already have approval notice I-797a in my hand. Currently, I am on OPT and it expires on 30-Sep-2008. The H1-B will start from 1-Oct-08, so there won't be any break. That's my background.

Employer-B does not appear to have much experience in hiring non-US citizens and I believe if I provide some starter info to my supervisor at Employer-B, it will help a lot.

From what I understood by reading this thread is
1) Employer-B needs to file a new H1-B petition. This will be "Transfer" petition, correct? (B/c I already have H1-B approval)

2) I am not clear if I should request employer-B for premium processing. It would be best if it costs them as less as possible. The decision to go for premium processing or not is dependent upon, what is required for me to start working for Employer-B from 1-Oct-2008?
Is it
1) Just the USCIS receipt of H1-B transfer application?
OR
1) USCIS approval of H1-B approval for Employer-B?


I also read about AC-21 portability. From it seems that USCIS receipt is sufficient to continue working with employer-b 1-Oct-2008 onwards. And since I am on OPT right now, I can start working for them without much hassles or USCIS approval.

If the receipt is sufficient, then we won't need to go for premium processing, is this correct?

Macrosky, What's your update on this? Did you proceed further with your plans?


Please clarify and let me know.
Thank you all.
VJ

[txh1b]

Beware of any non-compete agreements that you have with A or between a and B. You can use AC21 and begin work as of October 1st.

For AC21 usage, there is some confusion that a person has to be already on H1b to use it (even though tha law text is unclear) and have a petition filed before joining B. My take on this is you are on H1b as of 12 am October 1st and you are beginning work for B, say at 8 am and your H1b petition was filed in advance.

Hence, i suggest to avoid confusion, go with premium processing. You can legally pay for the $1000 from your pocket if needed. Other than this reason, you can go with regular processing if you intend to. Consult an attorney though.

[a380x]

Beware of any non-compete agreements that you have with A or between a and B.

The following is a direct quote (but with names changed) from my agreement that sounded close to non-compete agreement

Certain Acts: During and after your employment with A, you will not do anything to compete with A's present or contemplated business, nor will you plan or organize any competitive business activity. You will not enter into any agreement, which conflicts with your duties or obligations to A. You will not during your employment or after it ends, directly or indirectly solicit or encourage any employee, agent, independent contractor, supplier, customer, consultant or any other person or company to terminate or alter a relationship with A

Does this cause amount to be a non-compete agreement? It does not seem to imply, directly or indirectly, that I cannot be hired by the client of employer A, except for the statement ...after it ends..encourage any..customer..alter a relationship with A. Does hiring me by the client of employer A amount to "alter relationship" of A with B? It is important to note that B has no intention to change any relationship with A. Actually, B is contemplating hiring me because they do not want to affect relationship with A.

Please advise.

Thanks,

[txh1b]

A 30 min consultation with a labor law or employment law attorney would be the best thing to do. It does sound like you are violating a non-compete.

[a380x]

A 30 min consultation with a labor law or employment law attorney would be the best thing to do. It does sound like you are violating a non-compete.

If employer A agrees for letting B hire me, it will solve the whole thing. Is that correct?