Q: H1B Visa transfer with few paystubs

[mxb8986]

Hi All,
I am on H1B Visa which is valid until Dec 2014. My new employer has applied for my H1B Visa transfer but he is anticipating the H1B approval without I 94 (since I don't have last 2-3 weeks of paystubs from my previous employer). He also informed me that I might have to go out of US and come back with a new I 94 at port of entry Immigration. If anyone had similar situation, please share your experiences and let me know the steps that I need to take to ensure proper H1B transfer without any issues.


Thanks!

[shervin143]

Well, if you don't have the latest pay slips then you are considered out of status on H1B. When you are out of status, the transfer will not come with a new I-94. The petition will get approved for Consular process, in which case you need to leave the country and return back on the new employer petition (using a valid H1B visa). This will get you a new I-94 at the POE allowing you to work for the new employer.

When you are in H1B, you should be working and getting paid to maintain your H1B status. The employer should pay you irrespective of whether there is work or not. If they cannot provide you work, they should keep paying until they write a letter to USCIS to revoke your petition. If you are not getting paid as per the approved LCA, then you can file a complaint with DOL and make the employer pay. The transfer with a copy of the complaint to DOL can make the transfer successful with a new I-94.

[mxb8986]

Thanks a lot for your response. Incase, if I do not get a new I 94 and I have to leave country. Do i need to get a H1B VISA stamping again? Also, my current employer hasn't revoked my H1B Visa. So, if I do not get an H1B approval with my new employer, can I still go back and work with my current employer. Thanks again for taking out your time and addressing this issue.


Thanks!

[shervin143]

Incase, if I do not get a new I 94 and I have to leave country. Do i need to get a H1B VISA stamping again?
>>> Not required to get the H1B visa stamped again if you already have a valid H1B visa stamped in your passport on the date of your return (Irrespective of the employer's name in the visa).

Also, my current employer hasn't revoked my H1B Visa. So, if I do not get an H1B approval with my new employer, can I still go back and work with my current employer.
>>> If old employer's petition is still valid and if the job still exist, then yes. You cannot just like that go back to your old employer. Either a H1B transfer need to be filed or you should leave the country and return back on a valid H1B visa and the old employer's valid H1B petition. This will get you a new I-94 at the POE that will allow you to work for the old employer.

[mxb8986]

Thanks Shervin for your suggestions. Today I got an update that USCIS has approved my case. Here is the message from USCIS:

On March 30, 2012, we mailed you a notice that we have approved this I129 PETITION FOR A NONIMMIGRANT WORKER. Please follow any instructions on the notice.

My question here is: Does it mean that the case was approved with or without I 94 attached ?
Is there any way to find out or do I need to wait until USCIS mails the notice?


Thanks!

[shervin143]

My question here is: Does it mean that the case was approved with or without I 94 attached ?
Is there any way to find out or do I need to wait until USCIS mails the notice?
>>> You need to wait until you receive the original approval notice in hand.