H1Bs Cannot Be "Transferred" and Other H1B Matters Posted Sep 02, 2005 ©MurthyDotCom Since 1994, we at the Murthy Law Firm (originally known as The Law Office of Sheela Murthy) have been providing useful information to our readers on matters of U.S. immigration law, as well as regulations and procedures. While some aspects of immigration have changed in significant ways in the years since we began publishing our articles, there is still much that remains the same. From time to time, we will select articles that are still relevant, to which we often refer our clients today.  (Aug 31, 2008) ©MurthyDotCom At The Law Office of Sheela Murthy, we try to address common questions and misunderstandings about immigration law for our MurthyDotCom and MurthyBulletin readers. Among the questions that often reach us, are those regarding H1B status and changing employers that refer to "transferring" the H1B. This term is frequently used, even by some immigration attorneys. The H1B is not actually "transferred" from one employer to another when an individual changes a job, however. We understand what people mean when they refer to an H1B transfer. We take this opportunity to explain the concept, though. This should help our readers to avoid misunderstandings as to procedure and requirements based upon the mistaken belief that the H1B is somehow transferable from one employer to the next. ©MurthyDotCom When a person is on an H1B and plans to change employers, what technically is filed with the USCIS is a new H1B petition, reflecting a change in employment, generally with a request to extend H1B status. Again, with the exception of the foreign national employee, there is nothing that transfers from one employer to the other. ©MurthyDotCom Permission Not Required from Earlier Employer ©MurthyDotCom Since there is nothing transferred between employers, it is not necessary to obtain permission from Employer A to move to Employer B. Employer B must simply file a new H1B petition with the USCIS. In order to obtain the H1B extension of status in the United States, the foreign national beneficiary must show that s/he is in status at the time of filing. This is usually evidenced by including the most recent pay stubs. Of course, this ability to obtain a new H1B approval without the permission of Employer A does not override any contractual obligations in terms of notice, non-compete agreements and the like that the employee may have entered into with that employer. These matters are often governed by both federal and state law aspects of employment law. ©MurthyDotCom Are Multiple H1B Filings Allowed? ©MurthyDotCom We at The Law Office of Sheela Murthy often are asked questions that involve a person working for Employer A, who has a pending H1B case filed by Employer B, who then wants to work for Employer C. In such a scenario, how would an H1B be transferred to Employer C if the USCIS has approved the H1B petition with Employer B? Again, there is the misconception that something gets transferred. H1B employees assume that if there are two cases pending, there will be a problem getting the H1B transferred to the appropriate employer. This is just not the case. As long as there is an unbroken chain of status, the H1B may be approved as an extension of status with an I-94 attached at the bottom of the H1B approval notice. ©MurthyDotCom Multiple filings are not without complications. Multiple filings can create confusion when trying to track an individual's status. There are issues with what is known as "bridging" when there are multiple filings. If one is relying on the filing from Employer B as a bridge in status to carry him/her over to Employer C, the Employer B petition has to be approved in order for the Employer C petition to be approved as an extension of status. Therefore, it is best to get legal advice to determine how to best coordinate these matters. ©MurthyDotCom What If I Do Not Have Recent Pay Stubs? ©MurthyDotCom People often want to leave their H1B employers when they are being unlawfully benched or otherwise not paid under the requirements of the H1B Labor Condition Application. They worry about whether they can transfer the H1B if they are not being paid. Again, there is no concept of a transfer, as such. If there are no recent pay stubs, it may not be possible to establish that the individual has been maintaining valid H1B status. Thus, it may not be possible to obtain an H1B extension of status within the U.S. This, however, does not prevent one from obtaining an H1B petition approval through a new employer and regaining valid legal H1B status by traveling abroad and reentering on a new I-94 card. Such a person would need to obtain a new H1B visa stamp in the passport if the prior H1B visa stamp has expired. ©MurthyDotCom What Happens to my H1B if I am Abroad? ©MurthyDotCom Questions arise on the topic of traveling abroad, or come from those who are outside the United States. An individual might have had an H1B filed by an employer, but for one reason or another, never entered the U.S. or worked for the employer. One might have been in the U.S. as an H1B employee at some point, but then left the U.S. to live abroad. People such as these ask about getting their H1Bs transferred from companies where they either never worked or are no longer working. Since there is no transfer, there is no concern about this issue. If one is abroad, the new company must file a new H1B petition. There is no pay stub problem in connection with the petition for a person living abroad, since there is no possibility of an extension of H1B status when the individual is not in the United States. (Lack of proper pay records may be an issue at the consulate in connection with an H1B visa application for one who was in the U.S. as an H1B employee, but was not being paid the required prevailing wage.) The H1B employee would need a new visa, if the earlier H1B visa stamp had expired. ©MurthyDotCom Conclusion ©MurthyDotCom We trust that this summary of H1B issues will help many of our MurthyDotCom and MurthyBulletin readers. Understanding that H1Bs are not actually transferable should shed light on these matters for many nonimmigrants. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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