H1b queries on Extension/Transfer , job change while in India

Current Situation:

I have H1b Visa stamped and Original I-129 petition from company A, India. Unfortunately still not traveled with H1 Visa yet, due to my current project release delay! But my H1 Visa validity is only till Dec’16.

I also have B1/B2 Visa valid till 2018. And my wife is currently working in US with H1b.

  1. As I am not getting any opportunities in company A; Can I quit company A in India without any issue with stamped H1 Visa? Will the company A can revoke or withdraw my H1 Visa or Petition, even when I am not working in US, but still in India?

What are other complications company A can create if they want to !?

  1. Can I travel to US with B2 Visa and search a job as I have H1 stamped from the ex-company A?

What is the process for my new employer B to recruit me? i.e. H1 amendment? H1 transfer? etc…

Should I have to get Visa stamped again for new employer?

OR can I apply for H4 dependent visa using my wife’s H1, and search job in US with my inactive H1?

  1. What is the process of H1 transfer within India, if I resign company A in India and join company B in India then travel to US? Can company B start processing H1 transfer along with extension when I am in notice period in company A. (my current company A notice period is 3 months!)

  2. And by max when should I apply for H1 extension if my Visa expires in Dec’16?

Can I apply for extension from India or only from US with new employer B?

Thanks in advance.

  1. You can transfer your H1B to company B and travel with your already stamped visa if it’s not expired.

  2. Use either B2 or H4. Better is H4. You can transfer your H1b in USA and you don’t need stamping as you already have a stamped visa.Even if you didn’t have you can stay in USA unless you leave USA. Visa is needed only for entry.

3.Extension is aplicable only when you are within USA. Extension is for your I94. If you are outside USA you don’t have I94. So, there is really nothing to extend.

  1. H1B transfer doesn’t depend on your visa expiry.You ca transfer your H1B to another company even if your visa is expired provided you have not stayed in USA for 6 years. If you enter USA and your visa/I94 is expiring you can apply extension not more than 6 months before expiry and not after expiry.Advisable to apply at least a month before expiry.

Thanks subhro_83 for the detailed response.

Few more clarifications :

  1. So company A will not apply for revoke or withdraw of H1b visa, when I am in notice period in India?
    As I mentioned, it’s 3 months notice period, not sure if any company B will wait so long with US positions open!

  2. Can I apply for H4 now and get H4 stamped, before my H1 is used? I mean will it have a conflict of interest at consulate?

To add I have original approved petition Form I-797A and also H1 Visa stamped with validity until Dec’16.
I-797A is supposed to be given to people who have already traveled to US right, not who is applying H1 first time from home country? Any difference it makes?

  1. They can withdraw the petition anytime they want - before/after the notice period. It’s their discretion. Still, it won’t stop B from filing a cap-exempt petition for you even after it has been withdrawn.

  2. You can appear for H-4 stamping now. Later, you can appear for H-1 stamping. It is ok to do so.

Yes, 797A is typically given to people who are applying for H-1 from within US. However, even if 797A was issued to you, it doesn’t make a difference to your current situation.

Thanks Saurabh!!
These clarifications really help in my decisions now.
I was afraid if they revoke/withdraw my petition, once I resign here in India.
Hope now once I resign, I will be assigned to new US project!

@Saurabh, one quick question, you might have answered above based on that but want to confirm…

Currently my H1 is already stamped from A, still I can go for H4 stamping sponsored by my wife’s company right? It will not cancel or affect my existing H1 visa?

Thanks in advance!

It doesn’t matter whether they cancel the H1B visa in your passport or not. When you convert to H4 status your H1 status is automatically cancelled. But if you want to join another company afterwards they will file a cap exempt H1B petition for you. Only thing is unless that H1 petiton gets approved you cannot start working for the employer because you are converting from H4 to H1 although it will be a cam exempt petition, i.e you won’t go through lottery. Based to current experience that’s taking more than 6 months unless you do in premium by paying 1225$ more

“Only thing is unless that H1 petiton gets approved you cannot start working for the employer because you are converting from H4 to H1”

  1. You mean there are rejection chances here or it will delay a lot if it’s not premium?
  2. And if rejected, can I apply H4 to H1 transfer again and again?

Appreciate a lot your patience and responses!
Thanks in advance.

If its not in premium it can take more than 6 months. My friend applied in August 2015 and hasn’t got decision yet. Chances of rejection may be there depending on your employer credentials and if your employer cannot give proper documentation for RFE. Lets say your employer files your H1B for client A and that client is gone by the time you get RFE , then they cannot give required documents and your H1 will be rejected. So, its advisable to do premium.]

You can apply H1 multiple times even after rejection but the scrutiny on your application will be more . But if you have good documentation you wuill get it approved even if it was rejected in past.

Thanks a lot subhro_83 !
This information helps a lot.

Hi Subhro,
Read in some forums, like new USCIS rules have mandated to work for original petitioner first before applying for transfer. Without which there are chances of denial/rejection during petition transfer approval!
And some were also mentioning, it is only before 1st-Oct start date if anyone tries to transfer approved H1, then it may be rejected.
Not clear on this part.

Mine is anyways last year cap 2015-16, so is it safe to do H1 to H1 transfer in India and travel to US; OR as I asked before travel on H4 & then in US get H4 to H1 transfer.

Thank you.

I don’t think there is any such official rule though I am not sure.

I would suggest that you go for H1B stamping if your employer is a renowned one. You can also do H4 stamping and go to USA. But only problem is even if you get an employer in USA you will have to wait for your H1B trasfer approval which may take upto 6-8 months because you changed your status from H4 to H1. You can do premium by paying 1225$ out of your pocket though. Another option is go to Haiti where you don;t need visa to travel Do H1B stamping there. All H1Bs get approved in Haiti or Canada.

I also don’t think there is a requirement to work for original petitioner first. There have been cases where the person “transferred” the H-1 w/o working for original petitioner and then successfully entered US w/ new employer’s documents.