H1B Transfer - visa used only for 3 yrs 4 mths

[knkr]

Hi Team,

I dont know if mine is a peculiar scenario, but can you please help me in figuring out if my H1B is eligible for transfer (or rather if I can change employer with my current H1B petition).

Here is the detailed explanation of my visa situation

1. I got selected for lottery in 2008 and got H1B visa
2. First entered US in Nov, 2009 - got couple of extensions - went back to India in Sep, 2012
3. My visa expired in May, 2013
4. Since, I had used less than 3 yrs of my visa, my employer filed H1B out-of-the-cap in June,2014 to recapture the left over period from my previous petition
5. I got visa for nearly 3 yrs this time(It is currently valid till mid of 2017).
6. I came to US in Nov, 2014
6. Today I have an offer from a different employer and their immigration team mentioned I have maxed out on my H1B time and that they would need an approved I140 to go ahead with the transfer. Since my employer never filed for GC , I do not have I140.

Why is my H1B not eligible for transfer like anyone else? is it because I have got through the lottery more than 6 yrs ago? Can someone please confirm If the other employer is right or have they misunderstood the case?

I can provide any other information you may need in answering my questions. Thanks for your help in advance.

[raghvi]

Hi Team,

I dont know if mine is a peculiar scenario, but can you please help me in figuring out if my H1B is eligible for transfer (or rather if I can change employer with my current H1B petition).

Here is the detailed explanation of my visa situation

1. I got selected for lottery in 2008 and got H1B visa
2. First entered US in Nov, 2009 - got couple of extensions - went back to India in Sep, 2012
3. My visa expired in May, 2013
4. Since, I had used less than 3 yrs of my visa, my employer filed H1B out-of-the-cap in June,2014 to recapture the left over period from my previous petition
5. I got visa for nearly 3 yrs this time(It is currently valid till mid of 2017).
6. I came to US in Nov, 2014
6. Today I have an offer from a different employer and their immigration team mentioned I have maxed out on my H1B time and that they would need an approved I140 to go ahead with the transfer. Since my employer never filed for GC , I do not have I140.

Why is my H1B not eligible for transfer like anyone else? is it because I have got through the lottery more than 6 yrs ago? Can someone please confirm If the other employer is right or have they misunderstood the case?

I can provide any other information you may need in answering my questions. Thanks for your help in advance.

If there is time remaining in 6 Years then it can be recaptured. After all you did already get it till 2017. The other company needs to hire some good attorney to take it forward.

This is my opinion not legal advice.

[knkr]

If there is time remaining in 6 Years then it can be recaptured. After all you did already get it till 2017. The other company needs to hire some good attorney to take it forward.

This is my opinion not legal advice.

Thanks for the reply raghvi. But from googling I see there is nothing like H1B transfer but it is just that people who change employers are considered cap-exempt because they were counted for quota in the last 6 years. However, I was counted for quota more than 6 yrs ago, so, just needed confirmation. Is there anyone who really faced this scenario?

[raghvi]

Thanks for the reply raghvi. But from googling I see there is nothing like H1B transfer but it is just that people who change employers are considered cap-exempt because they were counted for quota in the last 6 years. However, I was counted for quota more than 6 yrs ago, so, just needed confirmation. Is there anyone who really faced this scenario?

Yes that is one criteria for claiming cap exemption, the other criteria is you should have been on H1 in last 6 Years, and time remaining in the 6 Years, which you were. read around for the "h1b remainder time " rules.

This is my opinion not legal advice.