Analysis of H-1B Visa Transfer Viability In the Face of Visa Irregularities – Part 1

Workers1.jpgIf you have had an H-1B visa approved but never joined an employer in H-1B visa status; if you have had H-1B visa status previously but have been out without a job for a while but now wish to get back in status; if you have had H-1B visa status but are now outside the US and wish to return to the US quickly because of a job offer; if have been out of status because of a technical violation that you had not control over and now wish to get back in status, you should read this three part article to understand how to deal with some of the more complex H-1B visa scenarios. Remember that competent immigration counsel should carefully analyze your visa issues and help you find solutions, if possible, to achieving your goals.

Scenario 1. Joe Previously Received H-1B Visa Approval but Never Joined Any Employer while on H-1B Status

Question 1. Can Joe Join a New Employer and Begin Working Immediately Upon the Filing of an H-1B Visa Petition?

Joe is an example of many foreign nationals who could not join the employer that had sponsored his H-1B visa petition due to the recent economic downturn. In this example Joe may have been in student “F-1” visa status, and had an employer file a cap subject H-1B visa petition which was successfully accepted and adjudicated. However, Joe never joined the employer who sponsored his H-1B visa. Instead, Joe elected to stay in the US in a different visa status altogether. Now, Joe found another employer who wishes to have Joe join its company on H-1B visa. Does Joe need another cap subject petition to be filed? Can Joe join the new employer upon the filing of an H-1B visa petition thereby taking advantage of the portability provision? Joe knows that if he is required to have a cap subject H-1B visa filed again that he could not join the new employer until after October.

This is an awkward scenario, but believe it or not, I have seen it frequently recently. The first question in this inquiry is whether Joe requires the filing of another cap subject H-1B visa and the answer is NO. The rule states that once Joe had been counted towards the cap, he can avoid having to have another cap subject H-1B visa petition filed on his behalf for six (6) years. Once we have answered this important question in the negative, we must now answer the next question: can Joe join the new employer upon the filing of an H-1B visa petition with the new employer, and the answer again s NO.

In order for Joe to take advantage of the H-1B visa portability provision, three conditions must be met: 1) Joe must had previously held an H-1B visa or status; 2) an employer must file a bona fide H-1B visa petition on this behalf; and 3) Joe must have not engaged in unauthorized employment previously. In this case scenario, although Joe had an approved H-1B visa petition, he never joined that employer hence he never held H-1B visa status. In order to receive H-1B visa status, the foreign national must be employed by the petitioning employer, which did not happen in this example. Therefore, Joe fails to satisfy one of three required criteria for H-1B visa portability in that he never held H-1B visa status. This does not mean that Joe must take certain drastic measures to join the new employer. This means that Joe may not join the new employer upon the filing of the H-1B visa petition. Joe must simply wait for the H-1B visa to be approved prior to joining the new employer. Obviously Joe may avail himself to the Premium Processing Service and obtain adjudication of the H-1B visa petition faster in order to join the employer sooner.

Conclusion:

Being the beneficiary for an approved H-1B visa petition means that the foreign national will not be subject to the cap in the following six years. Taking advantage of the portability provision requires the foreign national to satisfy certain requirements, one of which is that foreign national had been in H-1B visa status or to have received H-1B visa stamping. Getting H-1B visa approval alone does not afford the foreign national H-1B visa status. The foreign national must had actually joined the employer in order to receive such status. On the other hand, if the foreign national received H-1B visa stamping, then this particular requirement will have been met even without the foreign national joining the new employer’s payroll.

Contact the attorneys at The Law Firm of Shihab & Associates to receive a free evaluation of your case. Our experienced lawyers can analize your situation and provide you with immigration solutions that will exceed your expectations.