h1 transfer questions

[deepsea]

Hello all,


My friend obtained his h1b stamping during Oct 2011 and has not yet traveled on h1b stamping.

Situation: Now his h1 employer has lost (got cancelled) some client contracts and therefore told my friend not to come over to US at this point in time, as he may have to pay my friend right from day 1 after landing.

My friend has found new h1 transfer employer and a project through them. The other employer is fairly large IT services company in the US and have told my friend to come over with the same visa to the US and then get initiate the transfer the very same day after landing.

Based on the above we require some clarifications:

1. Would such h1 transfer be ok as my friend would have not pay stubs from my new employer ?

2. Assuming the transfer goes through fine and my friend joins the new h1 transfer employer, would their be any other implications in the future while travelling abroad ? Such as ... my friend may have to travel back to India for marriage or getting his spouse maybe after 6-9 months. Not sure if he should go again for stamping again.

3. How to find out if the h1b visa stamping from the present employer is presently valid status AND NOT been revoked by the present employer ? My friend does not have access to the attorneys who filed the visa on the companies behalf.

4. If his h1 is revoked, would my friend fall under the cap again for the next year or would be cap exempted while applying with a new employer?

5. How long would the transfer of the visa take if the transfer is applied thru premium processing after landing in US.?

6. New employer may ask for a bond signing for staying with them for 1 or 2 years. Is it a good idea to sign ?

My apologies if i have asked too many questions. Really appreciate any help here.

Thanks for any suggestions in advance,
Deep

[shervin143]

My friend has found new h1 transfer employer and a project through them. The other employer is fairly large IT services company in the US and have told my friend to come over with the same visa to the US and then get initiate the transfer the very same day after landing.
>>> It is pure illegal to travel to U.S using a petition of one employer to work for another employer. If the current employer has already send a notice to USCIS to revoke the petition or if the officer at the POE figures out that you your friend is illegally entering U.S with the wrong petition, they will deport him and ban him for life from entering U.S.

Based on the above we require some clarifications:

1. Would such h1 transfer be ok as my friend would have not pay stubs from my new employer ?
>>> Never advisable. It is illegal to do so. Ask the new employer to file the transfer and when the transfer gets approved, travel to U.S with the new approval notice and the existing H1B visa (even if it is stamped with the current employer's name on it.)

2. Assuming the transfer goes through fine and my friend joins the new h1 transfer employer, would their be any other implications in the future while travelling abroad ? Such as ... my friend may have to travel back to India for marriage or getting his spouse maybe after 6-9 months. Not sure if he should go again for stamping again.
>>> No need to get the visa stamped again. You can use any valid H1B visa with the approval notice of the employer who you will really work in U.S to enter U.S.

3. How to find out if the h1b visa stamping from the present employer is presently valid status AND NOT been revoked by the present employer ? My friend does not have access to the attorneys who filed the visa on the companies behalf.
>>> I think you are asking about the petition and not the visa. Validity of the visa can be found in the passport. You need to check with the employer to see if the petition was revoked or not. This information will be absolutely no use. If the petition is revoked, then you cannot work for that employer. It doesn't mean that you cannot file a transfer to a new employer using the CAP from that petition.

4. If his h1 is revoked, would my friend fall under the cap again for the next year or would be cap exempted while applying with a new employer?
>>> No need to go through CAP again. You can use the CAP from the previous approval notice while filing a new petition and request an immediate start date.

5. How long would the transfer of the visa take if the transfer is applied thru premium processing after landing in US.?
>>> It will take 15 days. It has to be done before going to U.S.

6. New employer may ask for a bond signing for staying with them for 1 or 2 years. Is it a good idea to sign ?
>>> When is ever a bond good idea to sign?

[deepsea]

Thanks shervin143, Now we do understand the risks in traveling with a previous employers petition / visa stamping.

But the new employer says that the transfer can only be initiated when we are in US,if we dont have paystubs of the prev employer. That is the reason he is requesting my friend to travel with the existing visa. Additionally we are told, we may have to redo stamping here in again, if the transfer is initiated from India. Applying for a transfer while my friend is in India with not a single pay stub from the present h1b employer, would this be ok ?

[shervin143]

But the new employer says that the transfer can only be initiated when we are in US,if we dont have paystubs of the prev employer. That is the reason he is requesting my friend to travel with the existing visa.
>>> That is not true. If your friend travel to U.S using the petition of the previous employer, then he should prove that he maintained his H1B status by working for that employer. The only way to prove that is by showing a pay slip from that employer which will not be possible. Without pay slip, he will be considered out of status and a transfer to any other employer is not possible in that case. If you friend never traveled to U.S in that H1B petition then there is no need for a pay slip. Any employer can file a new H1B petition if you provide them a copy of the existing approval notice and request an immediate start date. I would suggest you transfer the H1B to a better employer who knows the immigration rules rather than the one who asks you to commit fraud.

Additionally we are told, we may have to redo stamping here in again, if the transfer is initiated from India.
>>> Not true. You can use the existing H1B visa with the new approval notice to travel to U.S.

Applying for a transfer while my friend is in India with not a single pay stub from the present h1b employer, would this be ok ?
>>> How in the world will one get a pay slip from a U.S company without having the chance to travel to U.S. Don't you think USCIS will know this simple thing. Pay slips are not required if you never traveled to U.S to work for that employer while filing the H1B transfer.

[deepsea]

@shervin143 - thanks for all the invaluable advice provided here.

My friend is in process of talking to a employer regarding the transfer now, one employer may be interested with the transfer procedure. We require a few clarifications before going forward considering the terms and conditions.

1. New employer is thinking about going for a premium processing and claims that as per law, premium processing charges can be borne by the employee, and therefore is requesting me bear the same. we are not sure at this point in time if this Is this legal ?

2. What is the average time it takes for premium processing and normal / regular processing takes assuming the documentation is intact. ?

3. New employer is requesting for signing a bond for 2 years. How does bonds work in US. Is it legal to force a worker to stay for a such a duration ? Should my friend negotiate further regarding this ? Would there be any implications for this further ?

4. The present salary offered by the new employer's and mentioned in LCA would be about 20% lesser that the salary offered by the previous employer ? Now would this create any issues while for the transfer approval. Both employer are from different states in the US. Could this be the reason ?

5. At the POE, my friend has been told re-stamping the visa is NOT required for h1 transfer although my friend is in India itself, and instead has been instructed to carry both the New LCA/approval and the old LCA/approval along with the passport with the previous visa stamping (this has the details of my previous h1b employer) while travelling. Please let us know if this is safe and are there any risks involved at the POE ?

6. The new employer is agreed to provide a temporary offer letter which has a base package and will be used only for the h1b transfer purpose. He says that once I am on the project he would actually workout a 70-30 basics depending on the project I am put into. And states this is the standard procedure followed for any employee who ever joins them. I am a little concerned here ?

Cheers, Deep

[shervin143]

1. New employer is thinking about going for a premium processing and claims that as per law, premium processing charges can be borne by the employee, and therefore is requesting me bear the same. we are not sure at this point in time if this Is this legal ?
>>> It is legal. The premium processing charges can be taken from the employee.

2. What is the average time it takes for premium processing and normal / regular processing takes assuming the documentation is intact. ?
>>> 2-3 months by normal processing and 15 days by premium provided there are no RFEs.

3. New employer is requesting for signing a bond for 2 years. How does bonds work in US. Is it legal to force a worker to stay for a such a duration ? Should my friend negotiate further regarding this ? Would there be any implications for this further ?
>>> There can be implications. No one can foce a person to work with them. But there will be other clauses which need to be read carefully. It is advisable to take the help of a labor attorney (The one who knows about U.S labor laws).

4. The present salary offered by the new employer's and mentioned in LCA would be about 20% lesser that the salary offered by the previous employer ? Now would this create any issues while for the transfer approval. Both employer are from different states in the US. Could this be the reason ?
>>> No issues as long as the pay matches the approved LCA.

5. At the POE, my friend has been told re-stamping the visa is NOT required for h1 transfer although my friend is in India itself, and instead has been instructed to carry both the New LCA/approval and the old LCA/approval along with the passport with the previous visa stamping (this has the details of my previous h1b employer) while travelling. Please let us know if this is safe and are there any risks involved at the POE ?
>>> No issues. Old petition and LCA will be of no use at the POE. They will care only about the LCA and H1B petition associated to the employer who you will be working,

6. The new employer is agreed to provide a temporary offer letter which has a base package and will be used only for the h1b transfer purpose. He says that once I am on the project he would actually workout a 70-30 basics depending on the project I am put into. And states this is the standard procedure followed for any employee who ever joins them. I am a little concerned here ?
>>> Technically 70-30 or what doesn't even makes sense in H1B. You need to get paid as per the LCA (the pay should not be less, it can be more). As long a syou maintain that, you are good. 70-30 or what is between you and your employer.