Transfer H1B having Never Worked For Employer Or Had Visa Stamped

[eb2visa]

Sorry to post here


Quick question is, My brother had h1 from 11/2013 to 9/2016. Never attended visa stamping.
1. Can He now transfer his h1 to a new employer? And attend for visa?
2. Will it be counted as cap exempt?
3. If USCIS determines it is subject to Cap, will they refund the fee?

Sorry again for posting here.

[Spectator]

Sorry to post here


Quick question is, My brother had h1 from 11/2013 to 9/2016. Never attended visa stamping.
1. Can He now transfer his h1 to a new employer? And attend for visa?
2. Will it be counted as cap exempt?
3. If USCIS determines it is subject to Cap, will they refund the fee?

Sorry again for posting here.

eb2visa,

I don't see how your brother is not subject to the exception in INA 214 (g)(7).

(7) Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

USCIS seem to have been quite lax about enforcing this provision in the past.

Since he has never been admitted to the USA in H1B status, he would still be eligible for the full 6 years of authorized admission at the time the new petition is filed. The fact that he never went for visa stamping for the original H1B may also be important.

It would not be a transfer, since he is not (and never has been) in H1B status with the original employer. It would be a request for a new H1B petition.

Personally, I think:

a) He would not be Cap Exempt (unless it was for a Cap Exempt Employer).

b) An Employer would have to apply under the Cap for a new H1B petition.

If USCIS accept a case for processing, they will not refund the fee, even if they subsequently find it ineligible.

[bluelabel]

eb2visa,

I don't see how your brother is not subject to the exception in INA 214 (g)(7).



USCIS seem to have been quite lax about enforcing this provision in the past.

Since he has never been admitted to the USA in H1B status, he would still be eligible for the full 6 years of authorized admission at the time the new petition is filed. The fact that he never went for visa stamping for the original H1B may also be important.

It would not be a transfer, since he is not (and never has been) in H1B status with the original employer. It would be a request for a new H1B petition.

Personally, I think:

a) He would not be Cap Exempt (unless it was for a Cap Exempt Employer).

b) An Employer would have to apply under the Cap for a new H1B petition.

If USCIS accept a case for processing, they will not refund the fee, even if they subsequently find it ineligible.

Spec,

You may be wrong here. I am the personal example of the same scenario but it was long time ago. I had a H1 petition approved through Employer A in India and got it stamped but I was not sent to USA by Employer A. After I quit Employer A in India, joined employer B India office and they successfully transfer(a new H1 petition but cap exempted) my old H1 petition without subject to cap.

[Spectator]

Spec,

You may be wrong here. I am the personal example of the same scenario but it was long time ago. I had a H1 petition approved through Employer A in India and got it stamped but I was not sent to USA by Employer A. After I quit Employer A in India, joined employer B India office and they successfully transfer(a new H1 petition but cap exempted) my old H1 petition without subject to cap.

There's some anecdotal evidence that USCIS are now beginning to enforce this law.

Good for you if you managed to evade it. That's what USCIS was doing at that time. They seemed to attach some importance as to whether a visa had been obtained for the original petition.

The way I see it is that if a person has never been admitted in H1B status (i.e.actually set foot in the USA and been issued an I-94 evidencing that fact), then they must by definition still have the full 6 years admission period available to them. There's no way around that fact.

The law seems very clear about not being cap exempt in that situation.

At the risk of being controversial, I think it should be enforced. There's far too many H1B approvals for jobs that don't actually exist. The initial cap subject H1B approval should only be valid for the job and location specified in the LCA. If the job is not actually available, the beneficiary should not be considered cap exempt. That is what that law (introduced as part of AC21) should achieve.

These days, a lottery is almost a given. Being selected has become the victory in itself and it has led to ever greater numbers of "speculative" petitions for positions that don't actually exist and a rise in cases where the person never takes up the job approved in the petition, but merely uses it as a vehicle to "transfer" to another employer from outside the USA. The MNCs are also flooding the system to gain a "bank" of H1B approvals they actually want to use at a later date.

I would hazard a guess that if being selected in the lottery alone did not make a person cap exempt (i.e. they actually had to start the job in the USA and spend at least one day in valid H1B status) and USCIS enforced the October 1 start date (H1B can't be filed more than 6 months ahead of start date), then there might not even be a lottery.

[qesehmk]

These days, a lottery is almost a given. Being selected has become the victory in itself and it has led to ever greater numbers of "speculative" petitions for positions that don't actually exist and a rise in cases where the person never takes up the job approved in the petition, but merely uses it as a vehicle to "transfer" to another employer from outside the USA. The MNCs are also flooding the system to gain a "bank" of H1B approvals they actually want to use at a later date.

USCIS in such cases should institute measures that will discourage such speculative hoarding of visa numbers. e.g. forfeiture of a granted H1 in favor of others waiting in line - unless utilized within 3 months since granted.

[EB3Iwaiting]

USCIS in such cases should institute measures that will discourage such speculative hoarding of visa numbers. e.g. forfeiture of a granted H1 in favor of others waiting in line - unless utilized within 3 months since granted.

Agree. Small US companies are losing out in the H1B lottery system as big consulting firms file multiple applications to get a better shot at the lottery. This also squeezes out the EBROWs whose result we are probably seeing now.

[harapatha]

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This also squeezes out the EBROWs whose result we are probably seeing now.

In a remotely coincidental way, that bodes well for EB3-I in terms of SO from EB3ROW

[anuprab]

In a remotely coincidental way, that bodes well for EB3-I in terms of SO from EB3ROW

ha..the plot gets thicker and thicker...I can't fathom the ways things are correlated

[Spectator]

Agree. Small US companies are losing out in the H1B lottery system as big consulting firms file multiple applications to get a better shot at the lottery. This also squeezes out the EBROWs whose result we are probably seeing now.

It isn't just small US companies.

I have direct experience of the effect of not being selected in the H1B lottery, then seeing posts from people for more than 6 years who were selected that FY but have never come to the USA.

This was an H1B petition from a Dow Jones 30 company.

Not being selected in the H1B lottery meant they had to consider plans B and C, involving either an O petition or being employed for a year at a European subsidiary followed by an L1 petition.

The Company also knew that there was a 3 month notice period for the existing job at that time and that notice would not be handed in until there was a visa in the passport.

I'm very supportive of the proposal that seeks to give priority to those petitions where employers are prepared to pay Level 3/4 wages and the complete abolition of Level 1 wages for H1B. The proposals in the Grassley Bill "would cut off the snake's head" as far as bringing in labor at the lowest wage level, regardless of what function the person was actually carrying out. The MNCs would be left with very few approvals for beneficiaries outside the USA, even at level 2 wages since they would rank as lowest priority.

The "best and brightest" from other Countries should be earning more than a level 1 wage and it would provide some incentive for Companies to hire from the "local" population.

Even without that, the laws and regulations already exist to tackle much of the problem, but it needs the will (and maybe manpower) to enforce them.

[Jagan01]

It isn't just small US companies.

I have direct experience of the effect of not being selected in the H1B lottery, then seeing posts from people for more than 6 years who were selected that FY but have never come to the USA.

The proposals in the Grassley Bill "would cut off the snake's head" as far as bringing in labor at the lowest wage level, regardless of what function the person was actually carrying out. The MNCs would be left with very few approvals for beneficiaries outside the USA, even at level 2 wages since they would rank as lowest priority.

I also happened to lose in the lottery like you while several people who got H1B visa in the lottery sat in Infosys, TCS, Wipro etc knowing that they would never come to USA for the next couple of years. These companies file the H1B way earlier than the anticipated date when they plan to send the employee to USA.

I concur with you regarding the Grassley Bill. It is very good bill and it does take care of most of the abuses existing in the system.

[Kanmani]

It isn't just small US companies.

I have direct experience of the effect of not being selected in the H1B lottery, then seeing posts from people for more than 6 years who were selected that FY but have never come to the USA.

This was an H1B petition from a Dow Jones 30 company.

Not being selected in the H1B lottery meant they had to consider plans B and C, involving either an O petition or being employed for a year at a European subsidiary followed by an L1 petition.

The Company also knew that there was a 3 month notice period for the existing job at that time and that notice would not be handed in until there was a visa in the passport.

I'm very supportive of the proposal that seeks to give priority to those petitions where employers are prepared to pay Level 3/4 wages and the complete abolition of Level 1 wages for H1B. The proposals in the Grassley Bill "would cut off the snake's head" as far as bringing in labor at the lowest wage level, regardless of what function the person was actually carrying out. The MNCs would be left with very few approvals for beneficiaries outside the USA, even at level 2 wages since they would rank as lowest priority.

The "best and brightest" from other Countries should be earning more than a level 1 wage and it would provide some incentive for Companies to hire from the "local" population.

Even without that, the laws and regulations already exist to tackle much of the problem, but it needs the will (and maybe manpower) to enforce them.

They need to at least enlighten the existing adjudicators first and then comes the will to implement and later on think about adding more manpower. Most of them are -----.

[Spectator]

I also happened to lose in the lottery like you while several people who got H1B visa in the lottery sat in Infosys, TCS, Wipro etc knowing that they would never come to USA for the next couple of years. These companies file the H1B way earlier than the anticipated date when they plan to send the employee to USA.

I concur with you regarding the Grassley Bill. It is very good bill and it does take care of most of the abuses existing in the system.

Jagan,

Sorry to hear that.

Of course, what you describe is forbidden by regulation and could be considered fraudulent, since an H1B cannot be applied for more than 6 months before the anticipated start date. Hence April 1 applications must have a start date of October 1.

8CFR 214.2 (h)(9)(i)(B)
(B) The petition may not be filed or approved earlier than 6 months before the date of actual need for the beneficiary's services or training, except that an H-2B petition for a temporary nonagricultural worker may not be filed or approved more than 120 days before the date of the actual need for the beneficiary's temporary nonagricultural services that is identified on the temporary labor certification.

We know it happens though.

There's also the requirement under regulation that the Employer notify USCIS if the petition is not used. That seems to be widely ignored.

8CCFR 214.2 (h)(8)(ii)(C)
(C) When an approved petition is not used because the beneficiary(ies) does not apply for admission to the United States, the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used. The petition shall be revoked pursuant to paragraph (h)(11)(ii) of this section and USCIS will take into account the unused number during the appropriate fiscal year.