Please help!!Offer from Comp. B while H1B applic. from Comp A for 2011 is pending

[savitri121]

Hi Folks,

I am working here in U.S. on L1B visa from company X. A different Company A filed my H1B application in May 2010 and status shows as USCIS has sent an RFE in March 2011, dont know why did so late. I also got an offer from a big company B recently but they have put the offer on hold till oct 2011 as they need to file my new H1B and I can start working for them in oct. Company B is willing to give me a position now in U.S. but just can't give me due to visa constraints so thay told me to wait till Oct 2011.

Just looking for some answers since my H1B application is still pending for 2011:

1. I read in economictimes that H1B CAP has already reached for 2011 so dont know why they have sent an RFE so late for my case which was filed in May 2010. Is there a hope that my application will get approved from Company A once they reply to RFE?

http://articles.economictimes.indiatimes.com/2011-01-29/news-by-industry/28427478_1_final-receipt-date-congressional-mandated-cap-uscis

2. I am willing to join Company B and I can join it even before Oct 2011 if I get my 2010 H1B application approved from Company A. As USCIS has sent an RFE and Company A needs to respond to that to get my application approved, Can I tell my Company B that I already have an application pending so they can submit an application to change the employer name from A to B and get the application approved to get the advantage of 2011 cap so that I can join them immediately?

3. Should I wait for the Company A to file RFE and get the H1B approved? As I am not going to work company A, I can tell Company B to offer me a position since now I have the approved 2011 H1B and they can file a transfer from company A to B? This way I can join them immediately I guess as I will get my visa in 2011 cap and can join them immediately.

4. As I am not going to join Company A, Do I need the paystubs from Company A to take my H1B transfer to Company B? What docs should I get from Company A to make the easy transfer?

5. What are the other possible options for my case?

Please Please advice….

Thanks.

[shervin143]

1. I read in economictimes that H1B CAP has already reached for 2011 so dont know why they have sent an RFE so late for my case which was filed in May 2010. Is there a hope that my application will get approved from Company A once they reply to RFE?
>>> A CAP is already reserved for your application since you filed the petition before the CAP ran out. But you can get that CAP number only if your petition gets approved. So if your employer responds to the RFE, you may get the petition approved under the previous year's CAP.

2. I am willing to join Company B and I can join it even before Oct 2011 if I get my 2010 H1B application approved from Company A. As USCIS has sent an RFE and Company A needs to respond to that to get my application approved, Can I tell my Company B that I already have an application pending so they can submit an application to change the employer name from A to B and get the application approved to get the advantage of 2011 cap so that I can join them immediately?
>>> That is not possible. You need a valid approval notice to transfer the H1B to company B. Unless company A's petition gets approved, you can no longer file a transfer using that CAP.

3. Should I wait for the Company A to file RFE and get the H1B approved? As I am not going to work company A, I can tell Company B to offer me a position since now I have the approved 2011 H1B and they can file a transfer from company A to B? This way I can join them immediately I guess as I will get my visa in 2011 cap and can join them immediately.
>>> Sounds like an plan. You can do that. Once H1B gets approved as a COS from L1, you can no longer work for your L1 employer. You should start working for Company A from the H1B effective date and ask Company B to file the transfer. Once you receive the H1B transfer receipt, you can join Company B.

4. As I am not going to join Company A, Do I need the paystubs from Company A to take my H1B transfer to Company B?
>>> You only need pay slips from Company A for the period you are in H1B status. If your H1B gets approved as a COS with the effective date of 15th April and Company B files a transfer on May 1st, then you need pay slips from the H1B employer for that 15 days.

What docs should I get from Company A to make the easy transfer?
>>> H1B approval notice.

5. What are the other possible options for my case?
>>> All options are discussed.

[savitri121]

Hi shervin143, thanks for the prompt response. I dont fathom your response to Q-3.
[Sounds like an plan. You can do that. Once H1B gets approved as a COS from L1, you can no longer work for your L1 employer. You should start working for Company A from the H1B effective date and ask Company B to file the transfer. Once you receive the H1B transfer receipt, you can join Company B.
]

Why did you say that I can no longer work for my L1 employer. I dont think company A is filing COS from L1. They just filed for new H1B application and I dont want to join company A in any case. I dont think I need the paystubs foe Company A to transfer my H1B to Company B since I have never joined A. Please correct me I am wrong?

This arises one more question.

Since company A filed the new H1B application from U.S., While I am working in U.S. on L1B, Is that possible that company A has filed for COS from L1 to H1B without informing me? I requested them to file just the H1B application as I am not willing to join them immediately after I get my H1B approved.

Please help answer this.

[shervin143]

Well, only the employer can tell you whether the H1B petition is filed as a COS or Consular process. If it was a COS, then upon approval your status will change to H1B and you have to immediately start working for the H1B sponsor to maintain the H1B status. Otherwise you will go out of status in H1B. You can no longer work for the L1 employer unless you go out of the country immediately and return back in L1 visa (Which will put you back on L1 status) . Working for the L1 employer without getting back L1 status will make your employment with L1 employer illegal.

If H1B was not filed as a COS, then you cannot start working for Company B immediately after filing the transfer. You have to wait until the H1B petition with Company B gets approved as a COS to work for them since until then petition gets approved, you will remain in L1 status.