Changing Approved H1B from CP to COS

[VishalM]

Hi,

An employee is working with Company A on L1 and is in status in US.

Company B applied for his H1B for CP in India and an approval notice was received.

Employee now wants to join Company B but also does not want to go to India for getting H1 visa stamp.

Questions:

a) Is it correct that employee cannot join Company B on the basis of his approved H1 until he leaves and re-enters the US with a new visa?

b) Can Company B file a I-129 to change approved H1 from CP to COS?

c) If yes, will they have to pay Training and Fraud fee again?

d) What options will apply in Section 2 items 2 and 4 of I-129?

e) At what point can the employee join Company B after filing the new I-129?

Thanks.

[shervin143]

a) Is it correct that employee cannot join Company B on the basis of his approved H1 until he leaves and re-enters the US with a new visa?
>>> It depends on how the H1B was filed. Was it filed as a COS from L1? Did the H1B approval come with a new I-94 attached to it? If yes, then you should be working for the H1B employer as of the H1B effective date. Any employment with the L1 employer after the H1B I-94 effective date is illlegal. If the petition for filed for consular process, then you cannot join the H1B sponsor until you leave the country and return back in h1B petition or file a COS from L2 to H1B and that gets approved.

b) Can Company B file a I-129 to change approved H1 from CP to COS?
>>> Yes. You cannot work until the COS gets approved.

c) If yes, will they have to pay Training and Fraud fee again?
>>> Amendment doesn't need them. Check the instruction to file form I-129 in USCIS.gov.

d) What options will apply in Section 2 items 2 and 4 of I-129?
>>> The employer/lawyers will know what need to go into I-129.

e) At what point can the employee join Company B after filing the new I-129?
>>> When H1B becomes effective after approval.

[VishalM]

The approved H1 was not filed as a COS and hence, did not come with a I-94. So, your answers are just what I had feared.

However, any input from lawyers on question d) shall be appreciated.

Thanks.