H1B Extension in process and transfer to Employer B based on approved I-140 with Employer A

Hello,
Here is my case details and I need some suggestion to take informed decision.
My I-140 was approved in April-2018 with company A and they filed extension in June-2018 for 7th year extension. My max out and I-94 expired in July-2018. As per current trend for Company A extension , There are lot of RFE and rejection happening, Therefore, I am thinking to change company and transfer my H1B petition with Company B.

I understand that I need to wait for 6 months with Company A after I-140 approved. There are few questions.

  1. Whether should I wait for Current extension petition decision with employer A or can initiate for transfer with Company B based on Company A I-140 and once petition got approved, I can join company B in Oct-18?

  2. Whether Company A will come to know through USCIS that new transfer petition is filed by Company B based on company A I-140 and company A can revoke it?

  3. What will happen if transfer petition B is approved and extension petition with Employer A got RFE or denied?

  4. What will happen if transfer petition with employer B is denied then I need to leave US immediately or still I can continue working with company A and wait for extension decision?

  5. What will happen if I do not find new employer immediately and extension got denied then I need to go back to India. Can I find new employer from there and once petition is approved with Employer B then I can come back to USA to work for new employer B?

  6. I know currently NTA rule is put on hold but if NTA rule come into effect from next month then what will be impact on above-mentioned questions?

I looking forward for you suggestion and appreciate your help.

Thanks a lot!

1. H1B transfer, i94 expired, i140 approved

My advice is to to wait for company A H1B result as your i94 has already expired.

You can file H1B transfer at this time using your approved i140, but If you file H1B transfer now and if it is approved, it will be done with consular processing.
You will have to go out of US and get H1B stamped and then re-enter US.

2. Will company A know about H1B transfer?

No, company A will not know unless you tell them. USCIS does not inform employers about employee’s H1B transfer petitions.

3. H1B transfer is approved, H1B extension gets RFE

This is a dangerous situatio. See this real life example with exactly same case:

4. H1B transfer is denied, still working with company A

You can continue working with company A and wait for their extension result.

5. Extension denied, apply new H1B extension from India using i140

Yes, you can do it.

6. NTA rule, if it comes into effect

If your i94 has expired and your H1B extension is denied, you start adding ‘unlawful presence’ from the day of denial.
This makes you eligible for issuing NTA as per USCIS definition.

I strongly suggest to apply extension in premium and that too well before i94 expiry.

i140 with H1B transfer - More FAQ

Thanks Anil for your detailed answers.

As per your suggestion , I can wait for company A extension result but i would be taking big risk here because 80% of extension are getting denied now a days. therefore i am considering to have some back up plan and start looking for other employer. If transfer petition get approved under consular processing then i am ok to go out of USA and come back with visa stamping.

do you see any issue during visa stamping in this type of cases ?

Regarding my question 5, If i go back and find new employer from India based on approved i-140 then H1B petition would be consider cap-exempt or it will be through lottery ?

Thanks a lot for your help !

Hi @DDSD

H1B issues with extension or Visa Stamping

There is no way we can guess if the H1B extension will be denied or visa stamping will be rejected or approved.
It all depends on your employer and H1B papers. People are getting approved too.

I know the scrutiny of H1B applications has increased and most of the applications are being rejected on the basis of not a ‘Specialty occupation’.

That really is a matter with your employer and they can prove your occupation to be a special occupation.

H1B extension from India with approved i-140

Yes, you can apply for extension from India. No need to go through lottery.

Thanks Anil for update.

I need one clarification regarding Aug 28th news about suspension of H1B premium processing, whether H1B transfer would not be allowed in premium processing after Sep 11 2018 ?

Thanks!

Yes, the Aug 28, 2018 H1B premium processing suspension is applicable to #h1b-transfer including #h1b-extension and #h1b-amendment.

Everything has been affected!

We covered the news here:

Thank you for your prompt response. Hats off to you for replying quickly and to the point for so many persons and helping them to take informed decision.

Thanks!

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You are welcome.

Let me know if you need more information.