Not joining a company after H1B approval?

[akhashr]

Hi All,

I have serious issue in hand with multiple offers. I am working for company A through a consultancy say X. X holds my H1B. I got an offer from company B (direct hire) and applied for H1B transfer. Now i am being offered a position(direct hire) by company A (my current client) after 3 months from now.

My preference is to work for Company A as I have established here already.

My questions:
1. Can I continue to work for X even though my transfer for company B gets approved?
2. Can company B create any problems since I accepted there offer but not join them?
3. Will switching companies like this have a impact on your GC?
4. If I call company B and have them withdraw my H1B transfer can USCIS stop my transfer?


It is extremely urgent and I greatly appreciate your help.

[shervin143]

1. Can I continue to work for X even though my transfer for company B gets approved?
>>> Yes, as long as Company X's petition and I-94 are valid.

2. Can company B create any problems since I accepted there offer but not join them?
>>> No one can force you to work for them. Employment in U.S is at will basis.

3. Will switching companies like this have a impact on your GC?
>>> No.

4. If I call company B and have them withdraw my H1B transfer can USCIS stop my transfer?
>>> Didn't you say that the transfer is already approved? I don't understand what you mean by stopping the transfer after the approval. Company B can decide to withdraw their petition if you don't join them. Whether they revoke the petition not will not have any impact on you.

[akhashr]

1. Can I continue to work for X even though my transfer for company B gets approved?
>>> Yes, as long as Company X's petition and I-94 are valid.

2. Can company B create any problems since I accepted there offer but not join them?
>>> No one can force you to work for them. Employment in U.S is at will basis.

3. Will switching companies like this have a impact on your GC?
>>> No.

4. If I call company B and have them withdraw my H1B transfer can USCIS stop my transfer?
>>> Didn't you say that the transfer is already approved? I don't understand what you mean by stopping the transfer after the approval. Company B can decide to withdraw their petition if you don't join them. Whether they revoke the petition not will not have any impact on you.

Thank you very much.

My current status is Company B has applied for the transfer. But not yet approved. My question is at this point of time can company B withdraw their transfer petition at this pending stage?

Moreover can company B ask me repay the attorney fee or sue?

The attorney who applied for the H1B Transfer now told me that after the start date mentioned on the transfer application I can no longer work for previous employer since the LAST ACTION was taken by COMPANY B on my H1B status. is this true?

Looking for your reply.

[txh1b]

The attorney who applied for the H1B Transfer now told me that after the start date mentioned on the transfer application I can no longer work for previous employer since the LAST ACTION was taken by COMPANY B on my H1B status. is this true?

This attorney needs to go back for learning immigration 101. It is totally wrong.

[akhashr]

This attorney needs to go back for learning immigration 101. It is totally wrong.

Oh thank you. In that case do I need to let my Company X know that I i tried transferring my H1B but once again with them? Do they need to update anything with USCIS?

Are these laws/information available on the USCIS site or anywhere else so that we can read them and clarify any doubts? Everybody seems to have similar questions but different answers across the internet.... it is tough.

[shervin143]

In that case do I need to let my Company X know that I i tried transferring my H1B but once again with them? Do they need to update anything with USCIS?
>>> They don't need to know that you applied for the transfer. You can continue to work for them as long as their petition and I-94 are valid. Even after the transfer gets approved, you can continue to work for Company X and NOT join company B.

Are these laws/information available on the USCIS site or anywhere else so that we can read them and clarify any doubts? Everybody seems to have similar questions but different answers across the internet.... it is tough.
>>> Search the USCIS web site or meet with a good imigration attorney.

[txh1b]

Laws are available on USCIS website. But laws are wriiten in plain english. They need to be interpreted to each individual case which is where an attorney comes into picture.

Each H1b is an individual petition specific to that employer. In reality, the term transfer used is totally wrong. H1b does not "transfer" from one employer to another. Each is an independent petition that is not subject to cap for that specific employer once you have an approved H1b.

You have to do lot of reading to get to the facts than just believe some random guy on a forum. If in doubt, always contact a qualified legal professional.

[akhashr]

Thank you guys. I planning to visit a immigration lawyer and get my questions clarified.
Appreciate all your help.Kudos

[akhashr]

I was told by my friends abt the following. Please let me know if anything is wrong in my perception. I trying to understand things and also help people who are looking for the same.

In that case do I need to let my Company X know that I i tried transferring my H1B but once again with them? Do they need to update anything with USCIS?

>>> They don't need to know that you applied for the transfer. You can continue to work for them as long as their petition and I-94 are valid. Even after the transfer gets approved, you can continue to work for Company X and NOT join company B.

I was told that my H1B with company X will have no problems even if my transfer for company B was successfully approved but havnt never been on B's payroll. Incase if I happen to be B's payroll for even for a single day then I cant go back to Company X as if nothing has happened (I am not sure of this). My understanding is in this case I will have to once again do a transfer for company X.

Please let me know if I am wrong.

[shervin143]

Did you read txh1b's reply below? Technically there is no such thing as H1B "TRANSFER". If you want to work for an employer on the H1B status, then that employer will need to apply a new H1B petition on your behalf with COS under the CURRENT CAP (Normally people call this as transfer). When that gets approved, you have the option to work for that employer. That approval doesn't mean that your existing petition with the current employer is revoked in any way. It basically means that you have two options now and you can decide which employer to work for.

Instead of asking multiple people and getting confused over different answers, I would suggest you to consult a good immigration attorney.

[akhashr]

Thank you Shervin143. Appreciate your help.

[txh1b]

What your friends said is half correct. If you join a new employer and start working for them, the H1b of old employer remains active unless they cancel it. However, if you want to go back to them and work, that is also possible. In such a scenario, the employer is at risk as they have to pay you for the gap period to technically re-instate you for the entire period so that it does not look like they put you on bench with out pay. If that happens, it becomes an issue to you as you are not eligible for a concurrent H1b.

Hence, as a safe bet, employers cancel the H1b. There was an AAO judgement that dealt with the case of a person that left the company, employer never canceled the H1b, employer was ordered to pay the entire amount till they oficially revoked the H1b.

I had posted the link to the opinion many months ago. Feel free to dig and read it. I just don't have the time to dig it for you.

Just thought I will try to confuse you more with a different twist in the case Cheers!

[akhashr]

If you join a new employer and start working for them, the H1b of old employer remains active unless they cancel it. However, if you want to go back to them and work, that is also possible. In such a scenario, the employer is at risk as they have to pay you for the gap period to technically re-instate you for the entire period so that it does not look like they put you on bench with out pay.

Just out of curiosity... please ignore if it sounds weird....

If I go back to my old employer and he decides to pay me so that it doesn't look I have been on bench... Then in that gap period I will be paid by 2 companies. Which I think is unlawful...

I would like your opinion on this...

[txh1b]

If that happens, it becomes an issue to you as you are not eligible for a concurrent H1b.

Your concern has already been addressed in my previous post.

[Amby]

Attorney

Hi,

Can someone suggest an immigration attorney who can also be contacted for some clarifications ?

Thanks,