I got my first fresh H1B in the year 2013 with the help of Employer “A” in India and travelled to the USA in May 2014 for two months. I came back to India and worked for the same employer “A” for 5 months and then travelled to the USA again in January 2015. I stayed in the USA till June 2019 and worked for the same employer “A”. My total duration with employer “A” was 4 years and 5 months in USA. I then quit the job with employer “A” while in the USA and came back to India to work for employer “B”. Employer “A” has WITHDRAWN the H1B since I am no longer working with them and left them. Never initiated the Green Card process. In this case,
Can a new employer “C” based out of the USA use my existing H1B and transfer it, given that it is WITHDRAWN by employer “A” ?
Do I fall under cap-exempt or have to go with the new lottery process next year?
When the H1B employee leaves the employer, the employer in bound by law to request USCIS to revoke the H1B. However that do not impact ability to change the employer in future.
In your case a new employer may file a new cap-exempt H1B petition for you and if approved, you can have your visa stamped and travel to the US to start working for your new H1B employer. The new H1B petition may be approved for the remainder period of the 6 year H1B term.
Thanks a lot Kalpesh. It helped a lot. Just one more query, in case if you can suggest
If employer “C” is willing to transfer my H1B (hoping it is possible as per your suggestion), considering that I am in India right now and have only 19 months left (along with travel ban); can employer “C” start my perm and I-140 process while I am in India OR I have to be physically present in USA working for them to start the process? of course after the H1B transfer.
Green card job is a future job so it doesn’t matter where the beneficiary is, in the US or outside, the sponsoring employer can still start your GC process.
Also not just your H1B employer but any other employer willing to offer you a permanent job (green card job) can file your PERM & I-140 while you work for another employer on H1B.
Answer looks different from What my attorney told a year back , he said to file PERM (1st step in green card processing) employee needs to be physically present in USA ?
Is it possible for a person who currently lives in India (without h1b stamping) , an employer can file perm in USA assuming company is going to onboard the employee in permanent job at US location?
Yes. As I mentioned green card job is a future job and can only be started once your green card is approved. While your green card in under process, you can be living in or outside of the US, doesn’t matter.