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Immigration Issues/Travel During H-1B Transfer

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QUESTION: Respected Sir,
I work for Company A in US on H-1 and I have latest 1 month payslip. Company B wants to transfer the H-1 on premium processing. My company A policy states that I have to come back to India in order to resign. I have the following queries :

1. Once the H-1 transfer is initiated by company B, can I leave US, go to India and resign ? Will my leaving US in middle of transfer affect the transfer in any way ?
2. If I leave US after the H-1 transfer is approved, can I enter back to US on Company A's visa ( which is valid till 2010) and company B's petition OR do I need to go for visa stamping again ?

Thanks in Advance.
Regards,
Kumar

ANSWER: Kumar:
Here is the USCIS rule in your situation:
It is quite likely that an H-1B may travel during the period following acceptance of new employment.
Department of Homeland Security (DHS) considers H-1B visa holders travelling during the period following acceptance of new employment as  admissible without a new visa during the period of validity of the original petition plus ten days, provided the applicant:
(1) Is otherwise admissible;
(2) Has a valid passport and visa (even it is the original visa); and
(3) Has a dated filing receipt or other evidence that a new petition was filed in a timely fashion.

Please note that if both the prior visa and the prior petition have expired, the applicant would not be eligible for a new H-1B visa until the new petition has been approved.

Hope this helps.

Sincerely,
Ramasamy Krishnan
www.ashleykrishnan.com



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

QUESTION: Sir,

Many thanks for your prompt and clear answer. Essentially, when I leave the US I will still be working for company A. I will resign in India and return to US holding either company B's approved petition or transfer receipt ( depending on whether I travel before or after the petition is approved ).
I will start working for company B only after I come back to US again. Does the above advice hold good in this case too ?

Thanks again for your help.

Answer
Kumar,
You can file the change of employer with a start date before you leave, take a leave of absence, port to the new employer and re-enter. The time of resignation in India should have no bearing in the US.

Sincerely,
Ramasamy Krishnan
www.ashleykrishnan.com

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Ramasamy Krishnan

Expertise

Immigration particularly business immigration and National Interest Waivers.

Experience

I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan, www.ashleykrishnan.com

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