I wanted to get some clarification on the risks associated with starting employment with a new employer after receipt notice but before approval.
I noticed you mentioned that it’s less risky to do this if you have significant time left on your i94 currently:
Why is that? If I start work with the new employer with receipt notice and the transfer is eventually denied, but my i94 is still valid for 6 months, what happens then?
- Can I remain in the US until the i94 expires?
- Can the new employer reapply for the transfer? If not, can they start a new H1-B without going through the lottery?
It sounds like in general, you recommend that you only start the new job after transfer approval. However, given how slow USCIS is these days, that makes changing employers on an H1-B very challenging (your new employer would need to be very patient). Is there any scenario where you think starting work with just the receipt notice is acceptable?
Thanks for the help. I’m planning on changing employers in the near future, and I’m trying to assess how this might work. If premium processing is re-enabled in February, I suppose that would change everything.
H1B transfer options
Yes, premium processing is the best option.
Second: I recommend to join a new employer on receipt if it is a direct client opportunity as it has low chances of denial.
Third: I strongly recommend to NOT join a consultancy company simply on the receipt as it has very chance of denial and if it is denied, you will be in trouble.
H1B transfer denial if i94 is still valid
Yes, you can stay in US if your i94 is still valid and you can still go back to back for old employer if they still have that job available which had the H1B approval.
If your i94 has expired and your pending H1B transfer is then denied, you are out of luck and would have to leave US immediately.
You can still file H1B transfer but will have to outside USA for result.
I have covered more scenarios here:
Thanks for the detailed response @Anil_Gupta!
So to be clear, if the i94 has not expired, you are not accumulating unlawful presence after the denial date? Could you stay in the USA while the new employer re-applies for the transfer or starts a new H1B application?
Are their certain occupations that are more likely to be denied? E.g. what about a Product Management role, applicant has a 4-year business undergraduate degree (not obtained in USA).
Any H1B Job code can be denied
There are chances of denial for any occupation that you have doubt in mind for.
We are seeing denials for even the job SOC codes that USCIS has been approving for last 10 years. So, nothing can be said about what code will face what kind of scrutiny.
H1B transfer denial - Out of status
If your H1B transfer is denied and your i94 is still valid, you will be out of status unless you go back to work with old employer.
Apply H1B transfer again after denial once
Your new employer can file new H1B application but you cannot start or keep working again for that employer until the H1B is actually approved.
And if you keep staying in US with “Out of status” since you are not working on H1B, it has its own consequences.
Got it. These answers have been very helpful.
- It sounds like after the denial, the new employer can re-apply for the transfer (while you’re out of the USA), and this is not subject to the lottery? Would a new H1B application from this same employer be subject to the lottery?
- How about a new H1B application from another employer (Employer C)?
No need to file New Cap Subject H1B if you have time left in 6 year quota
There is no need to file new H1B until you have exhausted full 6 year quota available for your H1B.
Each new employer B … Z can file H1B transfer using your existing H1B approval that has already been counted once under the cap.
Ok got it – and this applies even if you no longer work for Employer A? (since you left them for Employer B, got a transfer denial, and had to leave the country)
Yes, that’s true.
Once you have the H1B approval counted under the cap (lottery), you can keep using it until the 6 year quota expires.
After 6 years, to get extension without going through lottery again, you should have your PERM and i140 approved.
Great, thank you! Appreciate all the help!