Can a H-1B approved in Consular processing transferred

[vthakare]

My H-1B visa is approved( Cap subject with start date of Oct1, 2008). The visa was applied through consular processing as my current Non-profit H-1B was expiring in August. Later my non-profit company applied for the extension and it got approved.
Now, If I get an offer from a profit org, can I transfer that H-1B ? or I will have to file an amendment as the for-profit H-1 B is approved in consular processing and then transfer to another profit org.
In short, I wanted to ask can a H-1B approved through counselor processing transferred to another company without leaving the country if one is in legal status.

[txh1b]

Yes. It can be done. All the new for profit company has to do is file for a transfer and use your university H1b status + paystubs to prove your current valid status, the newly approved cap subject H1b approval notice or web case status printout to show that you have a cap-subject H1b approved.

BTW, how is this your first post? I think you have posted earlier on this forum.

[vthakare]

Thanks a bunch. This is indeed my first post.
Today, i talked with the legal counsel in the firm that processed my H-1B. And as per her, i need to file for an amendment first then and then only i can transfer the visa as the visa was approved in consular processing. I am so confused but it think i trust you as you were dead right in the past.
Thanks and bunch and please ignore the email i sent you asking the same questions. You rock.

[C4us]

An attorney is more likely to be correct than posters on a forum about your particular case. You may have significant issues that determined their response. They have all of the details on which to make a decision. You are foolish to ignore their response in favor of one from a forum even if you like the one on the forum better.

[txh1b]

Today, i talked with the legal counsel in the firm that processed my H-1B. And as per her, i need to file for an amendment first then and then only i can transfer the visa as the visa was approved in consular processing.

The attorney is right if you are planning to join the same employer that filed for a CP processing cap-subject petition. If you want to join that employer, you need to have them file an amendment and that will not go through anyway due to the gap in the end date of current H1b and start date of new H1b.

If you are going to join a new employer, they can file a transfer petition checking the EOS box on the form I129 and other things I suggested and the new approval will come with an attached I-94 at the bottom making the transition seamless without needed a trip for visa stamping.

BTW, do not quit your cap-exempt employer until the EOS from the new employer is approved and you can begin work for them only after Oct 1st and can quit the current job only after that.

Also, noticed that you have a gap issue between August and October which will prompt a CP rather than a EOS on your petition. That might be one of the reasons why the lawfirm said so. Even then, your cap-exempt H1 extension has to be filed to cover the gap.

[txh1b]

Most of the attorneys are better and right most of the times. But, for an attorney, you are just a case # and a client and they are not personally interested in your problems of immigration. I am not saying that I am personally interested in this poster's problem but remember his history from a lot of discussion we had in the past by emails.

I have seen some attorneys that are wrong sometimes(which includes mine!) and not aware of the latest changes in the law or the memos and suggested incorrect things to people. As immigrants, we are more interested in reading about experiences from people and keep ourselves updated.

[vthakare]

The attorney is right if you are planning to join the same employer that filed for a CP processing cap-subject petition. If you want to join that employer, you need to have them file an amendment and that will not go through anyway due to the gap in the end date of current H1b and start date of new H1b.

I am not planning to join the company that filed for my H-1

If you are going to join a new employer, they can file a transfer petition checking the EOS box on the form I129 and other things I suggested and the new approval will come with an attached I-94 at the bottom making the transition seamless without needed a trip for visa stamping.

I now have an approved H-1 B from University which is good till August 2011

Also, noticed that you have a gap issue between August and October which will prompt a CP rather than a EOS on your petition. That might be one of the reasons why the law firm said so. Even then, your cap-exempt H1 extension has to be filed to cover the gap.

There was a CAP Gap issue before, but now I have an approved H-1 B from university till August 2011. Will i still need to go for consular processing.

I really appreciate your help. My lawyer asked to file for amendment with Premium processing. That means an investment of $2000.00 on my part. I just want to transfer this H-1B to another company before or after Oct 1. So wanted to seek your advice, so that i dont make unnecessary investments. I will really appreciate any clarification.

Thanks as always.

[txh1b]

You don't need an amendment from current Cap-subject H1b employer. When that H1b was filed, was it purposefully filed as a CP case or did they not present the current H1b extension till Aug 2011? The gap was the reason most likely for CP approval.

Just go with the brand new employer EOS approval if you are going to join them. No need to invest in the amendment if you were to ask my opinion. You can call some other attorney and ask if you need a second opinion from a legal professional.

[vthakare]

I am so confused. Please read the reply from my attorney below:
--------
Vikrant,
You have to have an I-94 from (name of company) in order for it to be valid.
If, after Oct. 1 you do not have an amended approval and you choose not to work for them you could transfer but you will not have current paystubs from them therefore you would most likely have to leave the country and be stamped with the new company's visa.
--------
To answer your question TxH1B, at the time of filing a new H-1B(for profit) i didnt have an approval from the university.
Best Regards,

[txh1b]

Your attorney is wrong.

You need not have paystubs from them even after October 1st as you are not maintaining the H1b through them. All USCIS needs is proof that you are maintaining a H1b status with any employer for whom you are authorized to work. What I told you in my very first post is the right thing to do.

Getting a I-94 with that employer does not apply to you as you are not going to work for them. For a transfer petition, all USCIS needs to know is that you have a cap-subject H1b approved in your name.

Get a second opinion from another attorney. This one is wrong as per my understanding of the law. Of course, I am not a qualified attorney and aiming high to become one :-)

[txh1b]

Page 7 of this memo has some information regarding concurrent employment for people in your scenario. Thought I will let you know in case you want to pursue concurrent employment with the new company in the meanwhile until Oct 1st, it is still possible.

http://www.uscis.gov/files/nativedocuments/AC21_30May08.pdf

Ask your attorney if you can work concurrently and report back their answer. Even though this memo is new, this was deemed possible long back.

[vthakare]

I think so too...She is wrong. But i will get a second opinion from another lawyer.
Currently i don't have an offer from any company but i want to keep the options open.
1. If i get an offer before Oct 1,2008. The new company will apply for transfer with approved CAP subject H-1B( I just have the receipt number) + (Pay stubs and current H-1B) from University which is approved till 2011.
2. If i get an offer after Oct 1,2008. The new company will apply for transfer with the same documents.

What I don't understand why the new company will file EOS, as now I am in legal status? Will they have to do it because the H-1B was approved in consular processing ? If I am right, I am starting to be a lawyer .

Thanks a bunch and have a nice day!

[txh1b]

What I don't understand why the new company will file EOS, as now I am in legal status? Will they have to do it because the H-1B was approved in consular processing ? If I am right, I am starting to be a lawyer .

Extension of stay is required for any new employer as your stay ends with the termination of employment with the old employer. This will give you an attached I-94 and allow you to being work without travel.

Every transfer can be an EOS if the person is in valid status currently to make it easy.

[txh1b]

Handling IT @ LSU for past 5 years.

What is the point of switching now to a cap-subject H1b? Hope the Labor cetification and/or I140 is a done deal for extensions past the 6 year limit.Oh well, you could have been doing that during your degree and OPT that buys you time anyway.