Safe to change employer with H1B transfer on Receipt without Premium processing?

Hi Anil,

I have one more query and i think i know the answer in the back of my mind but still it wont hurt to get a second opinion :slight_smile: )

I am working for employer A and have given interviews with B and they have rolled out an offer (at least verbally). Should be getting a formal letter soon. Since I am on H1B, they need to file for a transfer or rather petition by case again. Now that premium processing is suspended, it might take anywhere between 1 - 6 months to get a response. So in the meantime, they may or may not hold on to this open position. So in this scenario do you think it will be good option to quit A and join B after getting the ‘Notice of Receipt’ from USCIS.

And any ideally, how long is it taking these days to get an adjudication on the transfer petitions?

Appreciate your help.

Thanks

H1B transfer - i94 expiry date is important

What is your i94 expiry? If you have a long i94 expiry like more than what a regular H1B application transfer is taking at this time, you can take the risk.
If your i94 is going to expire soon, it is too risky to move without a concrete approval.

H1B transfer - Third party consultant or direct client?

As per my opinion, you should NOT move unless your H1B transfer is approved with any third party consultant company.
You can still take a risk with direct client hire opportunity if the employer has good credentials. Otherwise, it is too risky to move.

You will be adding complications if you move only on receipt basis.

H1b transfer processing time

Current H1B Transfer processing time (4-8 months):

Thanks for quick response Anil.

I didn’t know there was I94 angle in this thing. My problem is my I94 expired couple of weeks back. So not sure where how much of a complication it can cause. And to your point on the employer credentials, it is direct hire for one of the top quasi-government orgs in USA.

If your i94 has already expired, then you have bigger problem if you join now with receipt.
Your current H1B extension application is now a BRIDGE application and its final result will affect your H1B transfer as well.

This means that your H1B transfer cannot reach a result unless H1B extension reaches a result. If your H1B extension is withdrawn after you leave or is denied finally by USCIS, your H1B transfer cannot be approved without consular processing.
This is done because each H1B approval brings a new i94 to keep your status in US valid from one i94 expiry to next one’s start date.

In your current case, if your H1B extension is denied, you will not get a new i94 to bridge the gap between your current i94 expiry and then the date of application of H1B transfer. This time gap will be counted as ‘Out of status’ time.

So, USCIS will not approve your H1B transfer or will issue an RFE or approve with consular processing i.e. go out of USA and get it stamped on your passport to re-enter.

You may want to read the complications it may cause:

The believe the assumption you made in the above point is that my H1B visa also is expired or about to be expired soon which isnt the case.

After I came to US, my initial Visa was valid until Sept 2018. However, there was an amendment made in 2018 (at which point they sought an extension as well). So that was approved without any RFE and my visa got approved till 2020. However, since I never gone out of US even once after I came here, the I94 is still reflecting the original date of sept 2018.

So, the current situation is that my I94 is expired, however visa is valid till 2020. To add another twist to the story, I am planning to travel to India this dec and get the visa stamping done in India.

With this added information, what do you think i should do.

I know I am asking too many questions, but any help/suggestion would be appreciated.

  1. If your H1B amendment + extension was approved, then you must have received a new i94 attached to i797 approval notice. That new i94 will supercede your old i94. Check it carefully. I think you are missing something here.

  2. Visa stamp in your passport is different than i797 approval.

  3. Visa stamp only gives you right to enter USA. Once you enter USA, visa has no role to play. It is i94 that defines how long you can stay and what happens if you file extensions before and after i94 expiry. Your i797 and i94 will go hand in hand.

  4. Visa stamp will only come into picture again if you go out of USA.

Thanks for the clarification. I did some more digging and found this link I-94 - Extension of stay, adjustment of status, change of status). Turns out that since my amendment + extension is already approved, this supersedes the I94 date as reflected in CBP website.

So in short i have a good 1.5 years time before the I94 expires. So going by your first response to my post, I can take the risk :slight_smile: (correct me if my assessment is wrong). Finally some positive news after a long while.

One last question before I rest my case: If at all I am taking the risk of going with emp B and they file for my transfer petition, do you think it will be fine to still get my visa stamping done while I am India (while the transfer petition is still in progress)?

Thanks

Have you checked your i797 approval notice to see your paper i94? Do not assume anything unless you have the i94 with new validity visible on it.

It is a very important piece of paper.

I would strongly suggest to NOT travel while your H1B transfer is pending.
H1B stamping might have issues since you would have left your old employer and if they withdraw your H1B application before you go for stamping, you will be in trouble.

If you really want to go ahead with joining new employer based on receipt notice, do NOT travel unless it gets approved and you get approved i797.