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Immigration Issues/H1B transfer using ongoing H1B transfer petition

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QUESTION: Hello Ajay,

I was working in Company A and accepted a job offer from Company B. Company B wanted me to start their training program and start a project as soon as the H1B transfer receipt notice came through from USCIS. I left Company A and started working for Company B. Now, USCIS has issued an RFE on my H1B transfer petition and Company B might not be able to provide some of the information requested. I have also received an offer from Company C in the meanwhile. For some reason, even if Company B responds to USCIS, I believe they might not be satisfied and I am concerned. My questions below:

1) Is it possible to transfer my H1B from Company B to Company C using the transfer receipt and current pay stubs?
2) If yes, will the current RFE create a negative impact or hinder the H1B transfer process from Company B to Company C or will it be treated by USCIS as a different case?

Thank you in advance for your advice.

ANSWER: Hi,

Co. C can file with the USCIS an H1B petition for you requesting extension of H1B status. Co. C will attach H1B receipt notice and recent pay stubs from Co. B when filing its H1B petition.

The petition through Co. C is approvable. However, the USCIS will both approve and grant "extension of status" through Co. C only if in the intervening period the H1B petition through Co. B has been approved.

If Co. B's H1B petition is not approved, the H1B approval notice issued for Co. C will indicate "consular processing", necessitating traveling to a U.S. Consulate outside the U.S., obtaining an H1B visa stamp in the name of Co. C., and then entering the U.S. in order to activate H1B status through Co. C.

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QUESTION: Thank you Ajay. I have a couple more questions:

My husband entered US on H4 visa stamp and has priorly worked in the US for a year. He has a job offer from a H1B sponsoring employer.

1) Can he initiate his H1B petition filing process using my current H1 transfer notice (Co. B) and current pay stubs?
2) If yes, will his H1B petition be at risk because of my RFE or in other words, will any decision from USCIS affect his H1B process? What are your recommendations?

Thank you very much. Your advice is extremely helpful.

Answer
Hi,

An H1B petition can be filed for your husband. He will not be subject to the visa cap if he was previously in H1B status for any length of time within the past six years.

He can show at the time of filing of his H1B petition that you are maintaining your H1B status by attaching your recent pay stubs from Co. B and the receipt notice that an H1B petition has been filed by Co. B. There should be no risk to approval of his H1B petition due to the RFE on your H1B petition.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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