h1b transfer from h4 visa

[billu]

i enetered US on h4 visa in sept. 2007. got h1b and started working on h1 in october 2008. was laid off in nov 2009 and my husband promptly filed my h4 and got approval in march this year. now another employer has filed for my h1b visa. do I need to wait for h1b approval notice since I am on h4 visa or can I start working as soon as the company receives the receipt notice?thanks for your answers.

[uno]

i enetered US on h4 visa in sept. 2007. got h1b and started working on h1 in october 2008. was laid off in nov 2009 and my husband promptly filed my h4 and got approval in march this year. now another employer has filed for my h1b visa. do I need to wait for h1b approval notice since I am on h4 visa or can I start working as soon as the company receives the receipt notice?thanks for your answers.

That's so simple, immihelp is a great resource and has laid out everything in plain language, you have to wait until you get H1B approval notice since this is a COS from H4 to H1 and not an H1 to H1 transfer.

Hope that helps

[billu]

answer from attorney

because i was getting conflicting opinions, i consulted an immigration attorney from a big law firm. here is what he says:

You can start working as soon the new company receives the h1b receipt notice.AC21 portability can be applied to H4 to H1 as well.

Link to AC21 guide:
http : // www.uscis.gov / files / pressrelease / ac21guide.pdf

"D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States; (b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition."


Based on above information. I would assume that its safe to start after getting the h1b receipt notice. This is for other people in similar situation so that they get the right info.

[shervin143]

That is not true. Your status need to change to H1B for you to start working. If you are already in H1B and if you transfer your petition to a new employer, then you can start working for the new employer immediately after getting the receipt notice as you are already in H1B status (Whatever you have posted below means this).

If what you have mentioned is true, then people who apply for new H1B should be able to work immediately upon receiving the receipt notice instead of having to wait until Oct 1st to work (when their status actually gets changed to H1B if the petition gets approved).

I suggest you consult a better immigration attorney instead of getting into employment without work authorization, which will cause issues later.

because i was getting conflicting opinions, i consulted an immigration attorney from a big law firm. here is what he says:

You can start working as soon the new company receives the h1b receipt notice.AC21 portability can be applied to H4 to H1 as well.

Link to AC21 guide:
http : // www.uscis.gov / files / pressrelease / ac21guide.pdf

"D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States; (b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition."


Based on above information. I would assume that its safe to start after getting the h1b receipt notice. This is for other people in similar situation so that they get the right info.

[billu]

That is not true. Your status need to change to H1B for you to start working. If you are already in H1B and if you transfer your petition to a new employer, then you can start working for the new employer immediately after getting the receipt notice as you are already in H1B status (Whatever you have posted below means this).

If what you have mentioned is true, then people who apply for new H1B should be able to work immediately upon receiving the receipt notice instead of having to wait until Oct 1st to work (when their status actually gets changed to H1B if the petition gets approved).

I suggest you consult a better immigration attorney instead of getting into employment without work authorization, which will cause issues later.

Please dont confuse first time h1b petition applicants with those who have had h1bs in the past 6 years. Here is what the law says;

The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States; (b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition."

As you can read above, the AC 21 portability takes effect for ONLY those who have had h1b visas in the past 6 years like me. I have consulted two different attorneys on this, both are from reputed firms and both agree on this point.