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H-1B Transfer from India before Oct 1; New USCIS Regulation may result in Denial
H-1B Transfer before Oct 1st maybe a risky thing, as I heard from a couple of attorneys of prospective employers that a new regulation has been effected by USCIS in May 2014 particularly around H-1B transfer. How far is this true?
My scenario & the question in short is: I've an approved H1B petition, filed and approved this year by A. I've a copy of the approval notice with me. I've not gone for stamping yet. I've never been to the US in H-1B or L-1. Can H-1B transfer be done before Oct 1st?
An immigration attorney says:
"If your current employer (company-A) revokes their cap-subject H-1B petition before October 1st, the USCIS can at their discretion revoke company-B's H-1B (transfer) petition since it would then be subject to the H-1B cap. Since there are no available H-1B visas for this year, company-B would not be eligible to sponsor a cap-subject H-1B for this fiscal year. Whether the USCIS will revoke company-B’s H-1B petition if your current employer revokes their H-1B petition is unknown as it is at the discretion of the USCIS."
Another one from a different immigration law firm quotes:
"In a May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:
If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap."
... meaning:
"If Company A’s approved petition is withdrawn before the new petition with Company B is approved, then the individual would no longer be considered “counted” under the cap.
The new petition would be denied for filing outside of the H-1B cap window."
The confusion still prevails, as there's no evidence or documentation pertaining to this in the USCIS website. Different attorneys have different views!!
Is anyone aware of this 'new' rule/regulation by USCIS? It would be great if you can throw more light on this gray area?
Thanks in advance!
My scenario & the question in short is: I've an approved H1B petition, filed and approved this year by A. I've a copy of the approval notice with me. I've not gone for stamping yet. I've never been to the US in H-1B or L-1. Can H-1B transfer be done before Oct 1st?
An immigration attorney says:
"If your current employer (company-A) revokes their cap-subject H-1B petition before October 1st, the USCIS can at their discretion revoke company-B's H-1B (transfer) petition since it would then be subject to the H-1B cap. Since there are no available H-1B visas for this year, company-B would not be eligible to sponsor a cap-subject H-1B for this fiscal year. Whether the USCIS will revoke company-B’s H-1B petition if your current employer revokes their H-1B petition is unknown as it is at the discretion of the USCIS."
Another one from a different immigration law firm quotes:
"In a May 21, 2014 Teleconference between the American Immigration Lawyers Association (AILA) and USCIS, the agency addresses the issue of withdrawal:
If the H-1B is revoked before the beneficiary can be considered in H-1B status – i.e. before October 1 of the given year, or if they consular process, prior to the beneficiary using the petition to apply for a visa/admission, then they would not be considered counted under the cap."
... meaning:
"If Company A’s approved petition is withdrawn before the new petition with Company B is approved, then the individual would no longer be considered “counted” under the cap.
The new petition would be denied for filing outside of the H-1B cap window."
The confusion still prevails, as there's no evidence or documentation pertaining to this in the USCIS website. Different attorneys have different views!!
Is anyone aware of this 'new' rule/regulation by USCIS? It would be great if you can throw more light on this gray area?
Thanks in advance!
