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Immigration Issues/Another employer file H1B when current employer has filed for extension

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QUESTION: Hello Sir,

I have a stamped visa until end of Sept 2014. When changed employer in 2012, USCIS gave me I797 till the end of Apr 2014. My current employer filed for my H1B extension in April this year and currently it is process as USCIS has issued a RFE. The response will be submitted probably by the end of next week to which I am expecting response in another 3 weeks.

Meanwhile I got a full time offer which I am keen to take. is this possible to switch employer when my I797 is expired and extension is in process?

ANSWER: Hi,

In general, it is OK for multiple employers to file an H1B petition for the same candidate: http://www.h1b1.com/practices/concurrent-employment/

However, it appears that your I-94 has already expired, and although you are able to remain legally in the U.S. based on a timely filed (prior to I-94 expiration date) H1B petition requesting extension of status, the situation is much more complex if the I-94 has already expired. The new employer's H1B petition will be approved and extension of status granted by the USCIS only if the original employer's H1B petition is first approved granting extension of status.

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

QUESTION: So in short, new employer would be able to file my H1B in current status but I'd be only able to start working for them if current employer's petition gets approved.

Am I assuming right?

Answer
Technically you can start working for the new employer upon its filing of an H1B petition.

However, the USCIS is ultimately not going to approve the H1B petition and grant extension of H1B status through the new employer unless it first approves the original employer's 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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