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Immigration Issues/H1B transfer before approval


QUESTION: Hello Mark

I currently in OPT status (expires in feb 09 with a possible extension option) My H1B has been approved by Employer A (IL) and is effective from OCT 1, 2008, I wish to work for Employer B (VA) ASAP, Since it is a much better company, The H1 cap is over, so I can only transfer my H1B...CAN I DO THAT? WHAT IS THE PROCEDURE?


Q3 :According to my understanding I can work till end of September 2008 on my OPT but then for the transfer I need to shoe my recent pay stabs from the Employer A. But how it is possible to show the recent pay stabs from the Employer A since I will be working with the Employer B for this whole time.

Q4: Can I use the pay stabs from before I started working with the Employer B?

Sorry for the long question. Hope you help me soon.

ANSWER: Farrukh,
You can have the new company file an H for you since you have been counted against the cap already.  If filed before October 1, there is no need for pay stubs.
Mark Ashley

---------- FOLLOW-UP ----------

QUESTION: Hello Mark,

Thanks for your reply but I did not exactly get what you meant by " since you have been counted against the cap already". I will explain you my situation again and I hope you help me out.

I am on OPT rightnow that started on Feb 1st 2008. I have applied for my H1B from an IT consultant company and I have got my name in the lottery and now waiting for the approval. Now I want to switch my employer since he is unable to get me a project yet and I have an offer from Company'B' who is also willing to transfer my H1B from my present employer. Now the issue is that I haven't work with employer'A' at all so I dont have any pay stub. And also my present employer has not given me the receipt # for my H1B(he is just updating me on the status).

My question is that in the above situation what are my options.

1. Can the employer'B' is able to transfer my H1B and if can do they have to apply for transfer before the approval or after the approval or after Oct 1st 2008?

2. what are the documents they will be needing for the transfer?

3. Do I need the pay stubs from the present company?

4. If my present employer got to now about my transfer and he cancel my petition for H1B will I go back on my OPT or I will get out of status?

5. If my employer is not giving me the receipt# is there any way to get it directly from USCIS?

I would appriciate your help in this matter and I hope a lot of people will get benifit from these questions

Thank you for the clarification.  
1.  As stated, since your H application was accepted in the H lottery, once approved you will have been counted against the cap.  When it is approved, you may have your new employer file for an H1 without any problem.  Obviously, since your H start date has not begun, you will have no pay stubs.
2.  You and the New Employer will have to file a new H for the new opportunity and send in similar documents as you did no the original application.  The only difference is that you will now include the the Approval Notice for the old H.
3.  see q # 1.
4.  You are on OPT until it expires.  Even if the H gets approved, you will not be on H status until the start date of the H.  Thus, if your original employer withdraws the application before it gets approved, you will remain on OPT.
5.  You may ask the attorney who handled the case to give you a copy of the receipts and approval.  He must give you a copy as he has a dual representative role for both you and the company.
Good Luck
Mark Ashley

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Mark Ashley


Business Immigration. My practice focuses on representing researchers, scholars, and other advanced degree professionals with filing NIW, EB-1,O-1, H-1, L-1 petitions. I am a founding partner in the immigration law firm Ashley & Krishnan,


18 years as a practicing attorney.

Member of AILA

JD from St. Mary's University, Texas.

Awards and Honors
American Jurisprudence Award recipient

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