H1B transfer

Hi all,
I heard the rule has change recently. You can't transfer to another employee with your current H1B.

My gf is in a tricky situation. Her H1B expires in Oct 2012, the company will want to renew her H1B for another 3 years. But, there is a possibility she might want to go for a different company. If her new H1B is processed with the current company, and you can't transfer your H1B. She is pretty much out of luck , except either enter with TN or stay outside of US for a year to reset the clock.

Is my understanding correct ?

Thanks

This is not quite true.

First, though, There never has been an H1B "transfer". What was possible was to apply for a new H1 and begin working at new job BEFORE approval, as soon as the petition was recieved by USCIS. This is known as "porting" one's H1-B status to another (second) employer. This could be done regardless of what status you were currently in (ie. you could have lost your job months earlier, and either becoem a tourist, a student, a Tn or an H4/TD spouse).

This still exists, but now one MUST be still working for the 1st H1B employer up until the new one is submitted in order to begin work immeditely. Otherwise, they cannot start to work until the new H1 is approved.

Second, this is not a new rule, it is simply a clarification by USCIS of what they consider a proper status for this porting to begin under.

Nothing of this would impact your Gf. She always needed to have the second company apply for an H1 for her (so this has not changed), and, because she presumably will be working at company #1, she can start at company #2 as soon as they file H1 petition (so she is not impacted by this clarification). She will be continuously in H1 status, and thus can start at Company # 2 immediately after petition is filed.

Btw, she would never have had to leave the country for a year in any event. Once one has had an approved H1, they can ALWAYS get subsequent H1's as long as they have not worked 6 years in H1. Nothing about that has changed.

Sounds like you are getting bad rumours.

Thanks for the detailed response.

I still got one follow up question ?

1: Does the porting use up the rest of your H1B p ?

Say you got a renewed (second) H1 from company 1, you worked there for three months, you then joined another company (porting). Does the new h1 starts a fresh 3 years or it continues use whatever is left from the one you are porting from ? Does the new h1 is subjected to the quota limit or the starting date Oct 1st ?

Thank you !

Again, porting refers to starting a new H1 without having to wait, it has nothing to do with your past H1, its expiry date, or its duration.

If your new employer asks for 3 years (which of course he will do), you will get a fresh 3 year validity. However, at the end of that 3 years, your H1 clock will be at 3 year plus 3 months. You will still be able to get another H1, but only for the remaining 33 months.

Once you have any H1 approved that was subject to the yearly quota, you are never again subject to that quota, unless your six year clock is up and you've left the country for a year.

Thanks a million.

Pardon my dumbness,
If I got a H1B once, for some reason, I either leave the company or the company lay off me, I then go back to Canada, but within a year, I find another company willing to sponsor me a new H1B. I will not be subjected to H1B quota or Oct 1st starting day ?

Regardless if you stay a week or a decade out of US, you will not be subject to H1 quota agin, unless and until you use up the 6 year active H1 clock.

Once you leave for a year, YOU can CHOOSE to reset your clock and get a full six years (but subject yourself to quota), but you do not have to choose this.

Hi Freinds ,

I am currently working for a bank in US that is willing to sponser my H1-B visa this April. I am currently working on my OPT which is good till May2013. I understand that although my H1-B visa my get approved in April it doesn not get activiated till Oct 2012.

My question is that suppose my visa gets approved in April , do I need to wait till Oct to switch jobs ? Or can I easily transfer my H1-B to another employer ? I am also aware that the new employer doesnt necessarily transfer the H1-B but he just files a new application which is exempt from the CAP

I would really approciate a response
Andy

You should be able to get the second H1 without problem. There have been case where the first sponsor gets so angry that they get USCIS to try and rescind the original H1, and since the cap is likely reached, prevent worker from getting any H1, but I don't think the employer has been successful to block such movement.

I know thatas soon as you start on H1 (in October 2012), yo are quite free to move instantly to new h1 employer.

There are better H1 savvy sites to ask this particular question.