Mixed Opinion on H1 Transfer with Approved Petition

[thambu2491]

Hello Team,

Thanks for all the help. I am presently on F1-OPT. EAD expiration , Dec - 2015. Currently working for an Employer since Jan - 2015 , who filed my petition. H1B got picked and they have given me the I-797. I also have an offer from a Company B , I did my internship there and I want to join them. The question is can I transfer my H1 Before OCT? They want me to join in 15 days. I am getting mixed opinions on this. Please advise.

Thanks.

[raghvi]

Hello Team,

Thanks for all the help. I am presently on F1-OPT. EAD expiration , Dec - 2015. Currently working for an Employer since Jan - 2015 , who filed my petition. H1B got picked and they have given me the I-797. I also have an offer from a Company B , I did my internship there and I want to join them. The question is can I transfer my H1 Before OCT? They want me to join in 15 days. I am getting mixed opinions on this. Please advise.

Thanks.

Earlier one could , but off late I am reading that USCIS has started issuing RFE for such cases as according to them you are not cap counted till H1 from A has begun, in which case, you should first work for A for few payroll period while on H1 and then initiate a transfer. Below is what the RFE looked like:

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC **** **** ** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

This is my opinion not legal advice.