H1 - H4 - H1 Queries

[trinity123]

I have a H1B petition that was approved by Company A in October 2013. I worked for company A for one year and then moved to H4 status starting from August 2014. I got an offer from Company B, and they have filed for my H1B petition under premium processing. I am currently awaiting the petition approval (I need to wait for the approval to start working for them because I'm getting a change of status from H4 to H1, and being on H4 doesn't allow me to start work even with just the H1b petition receipt). In the meantime I got another offer from Company C, and I want to join Company C. So here are my questions:

1. Should I inform Company C that I have another H1B petition pending from Company B? Will Company C need the receipt of the H1B petition or approval notice from Company B, for them to file an independent H1B petition for me?

2. What happens if Company C files an independent H1B petition for me, and after that my approval from Company B comes through? Will this cause any problems with my Company C petition, considering that I am currently on the H4 status and once Company B approval comes I'll be on H1B status. Whereas the petition sent by Company C would say I am currently on H4 status.

3. Assuming approval from Company B comes through soon enough, should I have to wait for the approval from Company C also to come through in order to start working for Company C, or would the receipt from Company C suffice in this case? (because approval from Company B has already come through which makes me eligible to work)

[shervin143]

1. Should I inform Company C that I have another H1B petition pending from Company B? Will Company C need the receipt of the H1B petition or approval notice from Company B, for them to file an independent H1B petition for me?
>>> Not required. Company C can file a COS from H4 to H1B since you are in H4 status now. However, if Company B's COS gets approved first, then your should be working for Company B to maintain your H1B status. When you are in H1B status, you need to be working and getting paid. Or you will go out of status.

2. What happens if Company C files an independent H1B petition for me, and after that my approval from Company B comes through? Will this cause any problems with my Company C petition, considering that I am currently on the H4 status and once Company B approval comes I'll be on H1B status. Whereas the petition sent by Company C would say I am currently on H4 status.
>>> That is not an issue because when Company C files the petition, you will still be in H4 status. The complication is that you will have to work for Company B to maintain the H1B status if their COS gets approved first.

3. Assuming approval from Company B comes through soon enough, should I have to wait for the approval from Company C also to come through in order to start working for Company C, or would the receipt from Company C suffice in this case? (because approval from Company B has already come through which makes me eligible to work)
>>> Only in cases of a transfer, you are allowed to do that. If you are in H1B status and if Company C files the transfer from B, then you are allowed to work for Company C based on the receipt. When Company C files your petition, you will be in H4 status. You cannot work for them until their petition gets approved.

[trinity123]

Thanks for your reply. I have a couple of other scenarios in mind, and was wondering if there will be any issues with them:

1. Company B COS petition approval still pending
Company C files COS petition from H4 to H1
Now, Company B approval comes by (which changes my status to H1, and I will have to start working with Company B)
In this case, do I still need to wait for the approval from Company C to start working for them? Wouldn't just having the receipt do to start work with C, since I have now changed status to H1 (through company B)

2. Company B COS approval comes by, and say after 1 or 2 days Company C files for my petition. In this case will it be a H1-H1 transfer that Company C will have to file, or will it be a H4 to H1 COS as Compnay B had previously filed? I assume its the former? If it's H1-H1 transfer, then I would not be able to provide any pay stubs from Company B because I would have barely worked with them for 1-2 days. Will this be an issue?

I am just trying to figure out the best coarse of action to take to have a smooth COS from H4 to H1B, considering I want to join Company C (they haven't yet started my H1 petition) whereas Company B has started the petition, and both offers came in around the same time.

[shervin143]

1. Company B COS petition approval still pending
Company C files COS petition from H4 to H1
Now, Company B approval comes by (which changes my status to H1, and I will have to start working with Company B)
In this case, do I still need to wait for the approval from Company C to start working for them? Wouldn't just having the receipt do to start work with C, since I have now changed status to H1 (through company B)
>>> As per my understanding, this is possible only in cases of a transfer (When you were already in H1B status and you are transferring to a new employer under the same status). In your case, your are not filing a transfer from B to C. Rather you are filing a COS from H4 to H1B. Consult an immigration attorney if you can.

2. Company B COS approval comes by, and say after 1 or 2 days Company C files for my petition. In this case will it be a H1-H1 transfer that Company C will have to file, or will it be a H4 to H1 COS as Compnay B had previously filed? I assume its the former?
>>> If Company B's petition is approved prior to Company C files their petition, then it has to be a transfer. You will no longer be in H4 status to file a COS to H1B.

If it's H1-H1 transfer, then I would not be able to provide any pay stubs from Company B because I would have barely worked with them for 1-2 days. Will this be an issue?
>>> Should not be an issue. If you haven't started working for that employer, how can you provide the pay slips.

[trinity123]

At this point, Company C attorneys are not willing to advise on what's the best course of action to take. They have 2 options laid out:

1. They said if they have to file for H4 to H1 COS, then I will have to withdraw my petition that B has filed (which is H4 to H1 COS). But my question is, is withdrawing the previous application really necessary? What am I supposed to do from my end to get this company B petition withdrawn? Say company B starts the withdrawal process, is there a chance that the petition might get approved before USCIS gets the withdrawal notice? (because I believe the approval should come this week) If so, what happens to my current H4 status in such a case and how will it affect the new H4 to H1 petition which company C files?

2. If I wait for company B's petition to get approved, after which company C will file h1 to h1 transfer. In this case, company C is saying that if the Immigration Service takes issue with this and they are unable to demonstrate that I am maintaining valid H-1B status, I may have to leave the US for a short trip (to Canada for instance) and reenter prior to starting work with them. Why would USCIS have any issue with this? I would be on valid h1 status when company C files the petition right? What's the purpose of leaving the country and reentering for a case like this?

[shervin143]

1. They said if they have to file for H4 to H1 COS, then I will have to withdraw my petition that B has filed (which is H4 to H1 COS). But my question is, is withdrawing the previous application really necessary? What am I supposed to do from my end to get this company B petition withdrawn? Say company B starts the withdrawal process, is there a chance that the petition might get approved before USCIS gets the withdrawal notice? (because I believe the approval should come this week) If so, what happens to my current H4 status in such a case and how will it affect the new H4 to H1 petition which company C files?
>>> Even if Company B would like to withdraw the application, USCIS may not act on it right away. It may take time for them to begin work on the withdrawal. It is possible that the petition gets a decision (approved or denied) even before they look at the request for withdrawal.

2. If I wait for company B's petition to get approved, after which company C will file h1 to h1 transfer. In this case, company C is saying that if the Immigration Service takes issue with this and they are unable to demonstrate that I am maintaining valid H-1B status, I may have to leave the US for a short trip (to Canada for instance) and reenter prior to starting work with them. Why would USCIS have any issue with this? I would be on valid h1 status when company C files the petition right? What's the purpose of leaving the country and reentering for a case like this?
>>> Well, if USCIS believes that you are not employed with Company B after Company B's petition approval they can raise an RFE to prove that you are maintaining the H1B status by working for Company B. To prove that, you will either need to send the latest pay slips from Company B (they give you about 90 days to respond to the RFE, so you can wait for the first month to give them a payslip) or an employment verification letter of some sort to prove that you are currently working and maintaining the H1B status. If USCIS is ot satisfied with the response to the RFE, they may approve Company C's petition with a new I-94. In that case, you will need to leave the country and return back using Company C's petition to get an I-94 at the POE before you can begin working for that employer. If Company C's petition gets approved with a new I-94, then you can begin working immediately for them. No need to leave the country and re-enter.

[trinity123]

Thanks for your reply.
Company B's H4 to H1 petition has gone into RFE. While the additional documents are being prepared to be sent, will this RFE affect the new H4 to H1 petition going to be sent by Company C?

[shervin143]

No. Each application will be evaluated individually.

Thanks for your reply.
Company B's H4 to H1 petition has gone into RFE. While the additional documents are being prepared to be sent, will this RFE affect the new H4 to H1 petition going to be sent by Company C?

[trinity123]

I told Company B that I no longer plan to join them. Their H1-B petition is still in the RFE stage. But now they are asking me to pay up for the expenses they incurred for my H1-B petition!! The offer letter does not say anything about this. In fact the offer letter states that this employment is for no specified period of time, and constitutes at-will employment. Am I obligated to pay the expenses they have incurred for my H1-B petition??

[shervin143]

No. You are not required to pay them.
However, just keep in mind that they have spend a lot of money on your behalf for nothing.

I told Company B that I no longer plan to join them. Their H1-B petition is still in the RFE stage. But now they are asking me to pay up for the expenses they incurred for my H1-B petition!! The offer letter does not say anything about this. In fact the offer letter states that this employment is for no specified period of time, and constitutes at-will employment. Am I obligated to pay the expenses they have incurred for my H1-B petition??

[trinity123]

I understand they have incurred a lot of expenses for me. I did what was best for me and my career by letting go off Company B and deciding to join Company C.
I also understand Company B is not legally supposed to be asking the candidate for the H1-B petition expenses based on this link. http://www.dol.gov/wecanhelp/h1bworkers.htm

But, would it still be illegal by law in any way if the candidate feels a sense of guilt, or morally obligated, and decides to pay Company B for the expenses they incurred? Considering there is no such clause in the offer letter.