Tortured by H1B question - renew or transfer

[auntie_tuti]

Dear Folks,

I beg of you to help answer an H1B question that has been torturing my head:

I am a Filipino citizen with an H1B visa with Company A (expiring 9/30/08 - this is my first 3 years ). I have never traveled out of the US (per advise of my immigration lawyer) so I never got the stamp and such. Company A also sponsored my green card application. My labor certification was filed on 07/26/2006. My I-140 has been approved. My I-485 has been filed and has been pending for more than 180 days; however, I would prefer to keep my H1B visa status than work on EAD card.

I just started my search for a new job; thus I have no offers at this point. However, it is my objective to fix my immigration status such that it will be less painful for future employers to consider hiring me. I have not broached the topic of renewing my H1B with Company A because I was under the notion that I could just find another employer who will take care of renewing my H1B; thereby sparing Company A of the expense and trouble of renewing me. After speaking to a few people, I realize that it might be easier for my future employer, Company B if I already renewed my H1B visa with Company A and then just file for a transfer later with Company B.

Could you please share your best opinion on what I should do -- considering processing times, etc?

Many thanks. I appreciate all your help.

[txh1b]

After speaking to a few people, I realize that it might be easier for my future employer, Company B if I already renewed my H1B visa with Company A and then just file for a transfer later with Company B.

That is not true. Each H1b application (for renewal or a transfer) is a new application that is not subject to the cap in the eyes of USCIS provided all 6 years were not used. It does not make it easy or hard for the company if it is a transfer or a renewal as the job has to qualify for the job in both the cases and it just extends your stay in the US.

H1b can be renewed 6 months in advance by company A and company B can opt to transfer the H1b by filing a petition before the end of your I-94.

Bottomline, it does not matter to you if you renew it first and transfer it or transfer it directly.

[auntie_tuti]

Dear Txh1b,

Thanks so much for your response. I am not clear about something.

Since my H1B is not expiring for another 5 months (9/30/08), if I transfer to Company B now will they have to apply for renewal in 5 months or does the transfer application automatically extend my H1B for another 3 years (since I've only used up 3 years so far).

In other words, will Company B end up having to file 2 applications, a transfer now and a renewal in 5 months?

Thanks so much

[txh1b]

It doesn't work that way. A company, when they transfer can decide to renew your H1b for a max period of 3 years and they need not do it for 5 months first and again renew it. They may have to renew for time left on your H1b after the 3 years again.

[DMX17]

Dear Txh1b,

Since my H1B is not expiring for another 5 months (9/30/08), if I transfer to Company B now will they have to apply for renewal in 5 months or does the transfer application automatically extend my H1B for another 3 years (since I've only used up 3 years so far).

The answer is "the transfer application automatically extends my H1B for another 3 years (since I've only used up 3 years so far)."

So if you apply for a transfer, the new I-797 and I-94 will be valid for roughly 3 years.

[auntie_tuti]

Dear DMX17 and txh1b,

Thanks so much for your response. Let me see if I got this right. If you were in my shoes, the least expensive and least painful way to go would be:

From now to say, early September - look for a new employer. When I find one, I should ask them to apply for H1B visa transfer (while I am still working at Company A) and use max 3 years for start date/end date (so it's automatically "renewed")

If I don’t find a new employer, say by early September, I should ask Company A to renew my H1B visa for max three years. I can still continue the search for a new employer, nonetheless.

Did I get that right?

If I got the above right, please answer the following questions:
(1) Until what time would it be safe to wait before renewing my current H1B with Company A? Is the 30 days I allotted in above example safe and sufficient?

(2) If I choose to renew my H1B with Company A now and suddenly, I find a new employer (Company B), can Company B still apply for my transfer while renewal with Company A is pending? If so, at what point can they apply for the transfer? Must I wait until renewal goes thru with Company A?

Thanks so much again. God Bless you guys!

[txh1b]

You got it right. Company B can apply for a transfer while a renewal of company A is in progress. The H1b fee has to be paid by the employer. The renewal from any company is dependent on the length of the labor certification. If the LCA is valid for 3 years, you get a 3 year extension. If it is for 2 years, then you get a 2 yr extension.

Look up the H1b FAQs to educate yourself about the H1b visa.