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H-1B Transfer But Now The Project Has Changed

Rahul Reddy & Vy Hoang – Attorneys At Law 

When a beneficiary changes companies from Employer A to B, a transfer petition is filed. As you may know, once the transfer is filed the beneficiary can immediately join the new company and begin working for Employer B. But what happens if the project changes once the transfer case is pending with USCIS?

A change in the project can be easily handled if acted upon quickly by the new company. If a new project is located within the same Metropolitan Statistical Area (MSA), Employer B should immediately file an Amendment to report the project change. This amended petition should be filed before the beneficiary moves to the new project and ideally filed before a Request for Evidence is issued.

Here are examples of a case we are handling in our firm regarding regular and quota cases:

  • The beneficiary is currently on OPT and has filed for a change of status to H-1B in the 2017 cap with Employer A. The Beneficiary’s H-1B petition was selected in the lottery, and a receipt notice was issued on April 17, 2017. One month later, May 16, 2017, Employer A notifies us that the project for the H-1B petition has ended but has a new project available in a new MSA. What do they do now?

    Luckily, the Beneficiary has not received a Request for Evidence for the initial H-1B petition. So our office immediately filed a new Labor Certification Application as the project is now in a new MSA, prepared an Amendment with the new project location and documentation, and filed it with USCIS.

  • The beneficiary is transferring from Employer C to Employer D. He filed a transfer petition in December 2016, but while the transfer case has been pending the project changed work location within the same MSA. What do they do now?

    Just the same, our office filed a new Labor Certification Application, prepared an Amendment with the new project information, and filed it with USCIS.

It is important to remember that there is no guarantee that filing an Amendment will ensure an approval by USCIS or prevent an issuance of an RFE to the underlying petition. The goal is to provide USCIS with notice that the beneficiary will be working on a different project than the one reported in the initial transfer petition.