Selected in H-1B Lottery can I change Employers before October 1?

By Adena Bowmen & Rahul Reddy, Attorneys at Law

Your employer or prospective employer filed your I-129 application in the lottery.  After months of waiting, you finally found out you have been selected and approved to start working on H1B on October 1.  Only now, another employer has offered you a position, with better pay or closer to where you want to live.

 

Q: Can the new employer file an I-129 transfer for me before October 1?

A: Yes, the employer can file an I-129 application on your behalf to change employers.  There is currently no regulation or guidance issued by USCIS strictly prohibiting this type of filing. 

 

Q: Will this I-129 application be approved?

A: It’s risky.  In the past, prior to 2014, these transfers were routinely granted.  However, we have seen a new interpretation from USCIS on this issue since 2014. USCIS has taken the stance on multiple occasions that only H1B holders who have previously been in H-1B status can transfer to a new employer.  As you are not in H1B status until October 1, filing a transfer prior to this date could lead to a denial.  We recommend waiting until October 1 to file a transfer to a new employer.

 

Q: If the I-129 application with the new employer is denied, but the employer who filed for my original H1B has not withdrawn, can I just use my original approval starting October 1?

A: As long as the employer has not withdrawn your approval, you should be able to start work on October 1.

 

Q: If I wait to file until after October 1, do I have to stay with my new employer until October 1?

A: If possible, it is best to remain with your employer until after the I-129 application is filed by the new employer and the receipt notice is issued by USCIS. USCIS is basing the denial of the transfer on the fact that you need to be in H1B status prior to filing the transfer.  Consequently, you would need to file the transfer after gaining H1B status, on or after October 1. You will need to demonstrate that you maintained your status from October 1 to when the new I-129 application is filed. Even if that is only for one day. We have seen RFEs issued in this situation for a lapse of only a few days between October 1 and the filing of the new I-129 application.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.