H1b visa transfer filed but still working for old employer while entering USA

[pronabdas]

Hi,

I am working for employer A and I have stamped H1B visa till 01-Dec-2016. I have plans to switch to employer B, and they will file my visa transfer this week(by 30-Sep-2016) in premium. I need to make a short trip to India and will be returning to USA on 15-Oct-2016. If the visa filed by employer B is approved by then, do I need to have the new I797 while entering USA? Please note that I am still working for employer A and I have stamped visa and I797 pertaining to employer A. Also, is there any cut-off date by which I have to enter USA using my stamped visa expiring on 01-Dec-2016?

Thanks in advance!!

[raghvi]

Hi,

I am working for employer A and I have stamped H1B visa till 01-Dec-2016. I have plans to switch to employer B, and they will file my visa transfer this week(by 30-Sep-2016) in premium. I need to make a short trip to India and will be returning to USA on 15-Oct-2016. If the visa filed by employer B is approved by then, do I need to have the new I797 while entering USA? Please note that I am still working for employer A and I have stamped visa and I797 pertaining to employer A. Also, is there any cut-off date by which I have to enter USA using my stamped visa expiring on 01-Dec-2016?

Thanks in advance!!

With whom so you intend to work from 15-Oct onwards?

[pronabdas]

I will return to USA on 15-Oct-2016, then I will resign from employer A and start working for employer B, say from 1-Nov-2016.

[raghvi]

I will return to USA on 15-Oct-2016, then I will resign from employer A and start working for employer B, say from 1-Nov-2016.

Then I would suggest they file for "transfer" post your return from your trip outside US as your I-94 would change.

This is my opinion not legal advice.

[pronabdas]

Thanks gor your advice.
I cannot ask my new employer B to hold off filing visa transfer till I return to US on 15-Oct.
They will file in next couple of days. If it gets approved before my return, will they ask for new I797 while entering US?

[raghvi]

Thanks gor your advice.
I cannot ask my new employer B to hold off filing visa transfer till I return to US on 15-Oct.
They will file in next couple of days. If it gets approved before my return, will they ask for new I797 while entering US?

Which one would you and your future employer would prefer?

1. Apply now for "H1 transfer", risk it getting approved as consular process and extension of stay denied because the applicant left US while it was still under process, thereby needing to further spend additional time, effort and money in trying to convert a consular process to EOS to get a new I-94 or maybe leave US again and re enter on B's petition

OR

2. Apply for "H1 transfer " with EOS post your return from trip?

I would suggest you tell B about your travel plans and you not being in US while their petition is pending and decide accordingly.

This is my opinion not legal advice.

[pronabdas]

Thanks again for your advice!
One more query, though I am working for employer A and I have stamped visa and I797 for employer A, then also I will not be allowed to enter USA just because employer B has filed for visa transfer? Also, what if the petition filed by employer B is in RFE state while I am entering the US on 15-Oct, will I be allowed to enter US?

[raghvi]

Thanks again for your advice!
One more query, though I am working for employer A and I have stamped visa and I797 for employer A, then also I will not be allowed to enter USA just because employer B has filed for visa transfer? Also, what if the petition filed by employer B is in RFE state while I am entering the US on 15-Oct, will I be allowed to enter US?

When did I say that you will not be allowed to enter? What I said was that because you are traveling while B's petition is pending, there is high likelihood of it getting approved as consular process and not getting a new I94.

This is my opinion not legal advice.

[pronabdas]

Thanks for the clarification!!
Can you kindly explain what is 'consular process' and how can it affect me/my employer?

[raghvi]

Thanks for the clarification!!
Can you kindly explain what is 'consular process' and how can it affect me/my employer?

It means you will not be able to work for B till you leave US and re enter by showing B's petition and a valid H1 visa.

This is my opinion not legal advice.