Saturday, February 26, 2011

Can one initiate H1B Transfer after Visa and I-94 has expired when H1B Extension is Pending with USCIS?

Saturday, February 26, 2011 | , , ,

If one’s H1B and I-94 has expired and his/her current employer has filed an extension which is pending with USCIS, can one change his/her employer?

Can one initiate H1B transfer when a H1B extension is pending with USCIS?

Different people interpret this in a different way. There is no defined statutory rule about this. This is gray area and solely depends upon discretion of an USCIS official. Your case could be argued in many ways.

a) Since you have filed an extension, your presence in US is legal and hence starting a new transfer should not be a problem. As long as your extension is not revoked or withdrawn by your current employer and you can get your H1B transfer approved before it is withdrawn, you should be fine. In such scenario please ask your new employer to process your H1B transfer case in Premium Processing and do not resign from current employer before your transfer case is approved. It will be wise to stay put.

b) Some officials could argue that since you were assumed to be in legal status based on H1B extension filing, and successive withdrawal of a H1B extension before approval after leaving your current company (even if H1B transfer case was approved before extension withdrawal) makes your presence after your I-94 expiry unlawful in US and hence H1B transfer should be void. You should leave the country immediately.

c) In other cases, officials could cancel your extension and just award you H1B transfer based on Consular processing. In this case you have to go outside the country to get your H1B stamped before you can start working for new employer.

d) Even if your H1B transfer is approved without any hiccups before extension is approved, there is always a chance that question on your legal presence in country could come up during I-485 interview or an approval.

Some of the approaches you can take are

  • Do premium processing in both cases. (Start transfer after Extension approval),
  • Do premium processing for the H1 extension and then after approval of which you can start a normal H1 transfer. You can start working on receiving I-797 receipt
  • Wait until Extension is approved before starting Transfer.

Best approach in this scenario would be to wait till the extension is approved and then start a H1B transfer. In any case please talk to a lawyer before taking any action as this clause is interpreted differently depending on the facts of the case.

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