Can I transfer H1B and work for new company?

[gatanesakharam]

Here is the situation,

1. I had first L1B and later H1B from Jan 2007 till March 2011 from company A
~ 4 years 3 months (3 months were spent in India so 4 years were spent)

2. Its been 1+ year I have returned and I am trying to find new employer who can file fresh H1B under 2013 cap so that I can get fresh 6 years for me to work. But unfortunately no company is ready to wait till Oct 2012.

3. One company B is ready to offer me job on my old H1B. so that I can begin employment ASAP. (Late May or early June)

my questions,

1. Can company B transfer my H1B by filing new cap-exempt petition? Since I am outside for 1+ year can I still use my old H1B? I797 and visa on passport says its valid till Aug 2012.

2. H1B visa stampped on my passport is valid till Aug 2012. So can I use that + new petition + offer letter to travel to US in June 2012?

3. As I understand I will have 2 years left on this old H1B and company is ready to file GC for me. I am aware that PERM + I140 needs to be clear to get extension. But I am confused whether should it happen 365 days before expiration?

Please help as if this is possible I need to initiate this ASAP without loosing more time to file new GC

Thanks

[shervin143]

1. Can company B transfer my H1B by filing new cap-exempt petition? Since I am outside for 1+ year can I still use my old H1B? I797 and visa on passport says its valid till Aug 2012.
>>> No. If you use the old CAP, then you will get only 6 year minus whatever time that you have already spend in U.S in H1B + L1 combined. If your enter U.S in a old CAP and ask another employer to file a H1B petition under new CAP, you will still get only the remaining period left in the old CAP and not 6 years. If you want to get fresh 6 years, then the H1B should be filed under a new CAP and you should enter U.S in that petition and start working from Oct 1st.

2. H1B visa stampped on my passport is valid till Aug 2012. So can I use that + new petition + offer letter to travel to US in June 2012?
>>> Yes.

3. As I understand I will have 2 years left on this old H1B and company is ready to file GC for me. I am aware that PERM + I140 needs to be clear to get extension. But I am confused whether should it happen 365 days before expiration?
>>> Either PERM should have been filed 365 days prior to the end of the 6th year or if PERM is filed in the 6th year, then both PERM and I-140 should get approved within the end of the 6th year to get the 7th year extension.

[gatanesakharam]

Thanks shrevin.
For your first answer, let me ask the question in different way ...

Is there any rule that I can not use old H1B since I have stayed outside of US for more than one year?

The challenge is company B is not ready to wait till Oct 2012 and asking if you are ready to come immediately next week on old visa?

[shervin143]

Is there any rule that I can not use old H1B since I have stayed outside of US for more than one year?
>>> There is no such rule.

The challenge is company B is not ready to wait till Oct 2012 and asking if you are ready to come immediately next week on old visa?
>>> Not sure what you are getting at. You cannot use employer A's petition to work for employer B. Employer B has to file a petition on your behalf and it should get approved for you to travel to work for employer B. You can use the old H1B visa from employer A to travel to U.S with the new employer's approved H1B petition (I-797) as long as the old visa in the passport remains valid. If you use the OLD CAP, you will get only the time remaining in that CAP (6 years - whatever time you have already utilized in that CAP) even though you have spend 1 year outside U.S.

[gatanesakharam]

Thanks for reply!

Company B is not ready to wait till Oct to start employment so new H1B is ruled out.
Since I am already counted in old CAP, company B is ready to do H1B transfer (get new petition) and since my passport already have stamp I can very well travel in May 2012 to begin my employment.

Now this employment can be only for 2 years which are left in my old H1B so company B is ready to file GC immediately in June 2012 so that 365-day rule will be applied for my LC (Hopefully my LC and i-140 will be approved by the end of this 2 years period and I will get another 3 year extention)

My fear was that since I was spent 1 year outside, I can not use old H1B's petition but looks like that's not the case. I can present it to new company, using CAP from that petition they can file for new H1B for me and I can begin employment in May 2012 instead of waiting till Oct 2012.

[shervin143]

That should work.

Thanks for reply!

Company B is not ready to wait till Oct to start employment so new H1B is ruled out.
Since I am already counted in old CAP, company B is ready to do H1B transfer (get new petition) and since my passport already have stamp I can very well travel in May 2012 to begin my employment.

Now this employment can be only for 2 years which are left in my old H1B so company B is ready to file GC immediately in June 2012 so that 365-day rule will be applied for my LC (Hopefully my LC and i-140 will be approved by the end of this 2 years period and I will get another 3 year extention)

My fear was that since I was spent 1 year outside, I can not use old H1B's petition but looks like that's not the case. I can present it to new company, using CAP from that petition they can file for new H1B for me and I can begin employment in May 2012 instead of waiting till Oct 2012.

[gatanesakharam]

Thanks!

Thanks for your reply!

[gatanesakharam]

One more small query

Hi shervin143,

One more small query in same context.

When I was working with company A from 2007-2011, Company A had filed GC under EB2. Unfortunately PERM was audited and later denied in 2010. The appeal was filed in 2010 without any decision when I left US in March 2011.

Since now company B is ready to file GC, I believe it will be fresh new EB2 application. Will my old application have any adverse effect on this? (because it was in appealed state?)

Thanks

[shervin143]

The old PERM denial will not have any impact on the new GC.

Hi shervin143,

One more small query in same context.

When I was working with company A from 2007-2011, Company A had filed GC under EB2. Unfortunately PERM was audited and later denied in 2010. The appeal was filed in 2010 without any decision when I left US in March 2011.

Since now company B is ready to file GC, I believe it will be fresh new EB2 application. Will my old application have any adverse effect on this? (because it was in appealed state?)

Thanks