H1-B and I-797 related questions

[sandeepkgiri]

Hi All,

I had a immigration question regarding someone. If you could answer or direct me to where I can find an answer, it would be very helpful.

He had a company A apply for his H1-B last year and got his I-797 approved. He is in India and he never got his H1-B stamp with company A. Now a company B is willing to file for his H1-B this year. He’s in a dilemma and could take 2 paths going forward, and we have questions for both paths.

Path A: He reveals to company B that he already has a I-797 approved. Then it would be a H1-B transfer.

1) Could be even considered as a transfer case, having never been in US?
2) If yes, would he have to wait till Oct. 1st to arrive in the US?


Path B: He does not reveal to company B that he already has a I-797 approved.

1) I’m assuming it would be like filing for new I-797 for company B.
2) Would he then be cap exempt with company B?
3) Could he have 2 approved I-797 at same time?
4) Would he have to wait till Oct. 1st to come to US with company B?
5) During visa appointment, would consular query about I-797 for company A?


Where does one usually find answers to questions like these?


Thank you in advance.

[shervin143]

Path A: He reveals to company B that he already has a I-797 approved. Then it would be a H1-B transfer.

1) Could be even considered as a transfer case, having never been in US?
>>> Transfer is nothing but a new H1B petition using the existing CAP. So the answer is 'Yes'.

2) If yes, would he have to wait till Oct. 1st to arrive in the US?
>>> No. That applies only to new CAP.


Path B: He does not reveal to company B that he already has a I-797 approved.

1) I’m assuming it would be like filing for new I-797 for company B.
>>> Yes.

2) Would he then be cap exempt with company B?
>>> No.

3) Could he have 2 approved I-797 at same time?
>>> Yes.

4) Would he have to wait till Oct. 1st to come to US with company B?
>>> Yes.

5) During visa appointment, would consular query about I-797 for company A?
>>> No.

Where does one usually find answers to questions like these?
>>> immihelp.com

[bhayzone]

AFAIK, to complete the H1B transfer from company A to B, you need to show recent payslips. Since your friend has never drawn a US salary, I think an H1B transfer is not possible ... I might be wrong and there may be ways around this that I do not know.

One option, is to travel to the US on company A's H1, and then transfer it to company B.

[shervin143]

This is not true. If you were never on the H1B status (Meaning, never visited U.S and worked on that H1B) then there is no need to submit pay slips during the H1B transfer.

AFAIK, to complete the H1B transfer from company A to B, you need to show recent payslips. Since your friend has never drawn a US salary, I think an H1B transfer is not possible ... I might be wrong and there may be ways around this that I do not know.

One option, is to travel to the US on company A's H1, and then transfer it to company B.