485 RFE - USCIS asking for Paystubs for Employer I NEVER worked

[nrakkati]

I have got an RFE for 485 application. USCIS is asking me for Employment Letter, Paystubs and W2 for the employer I NEVER worked. (I have typed exact message below)
*
This is my situation-
I worked for 'Employer #1' from Jan-2000 to Jan-2005
Then I started working with 'Employer #2' from Jan-2005 to present. Employer #2 filed my H1/Labor/140/485. I am still working for Employer #2
*
However, I thought of changing job in 2006 and 'Employer X' offered me a job and sponsored my H1 and it got approved too, but I changed my mind and decided to continue with my current employer (Employer #2) and I am still with Employer #2. Please note my latest H1B was sponsored by “Employer X”, but I never worked for this Employer.
*
Please advice-
1) What should I send to USCIS? As I don’t have (can’t get) Employment Letter, Paystubs and W2 for “Employer X”
2) Would you consider this as simple case or complicated?
3) Should I hire attorney? (I self filed my 485 in July-2007)
*
*
This is the exact text - (changed Employer names)
Service records indicate that you were granted an H1-B nonimmigrant worker classification for employment from DEC 11, 2006 to DEC 11, 2009 for “Employer X"-. However, according to the G-325a submitted with your application, you had only worked for "Employer #1" from Jan-2000 to Jan-2005 and for the "Employer #2" from Jan-2005 to the present. Please provide evidence that you were employed with “Employer X". Such evidence may include copies of: employment letter, pay stubs or w2s

Thank you for your time and help.

[randomness]

I have had this query before. I had an H1B stamping on my passport for a company I never worked for. (Company A)

But, when I applied for a H1B for a different company (Company B). My lawyer asked me if I ever worked for them and received any salary from them ... this was a RFE on my H1B case.

All I did was replied to my lawyer with a negative answer to both questions (worked, salary for Company A).

I got my new H1B approval I guess within 30 days of that RFE reply.

You might want to contact a lawyer to draft a reply to USCIS though. I do not have a copy of the letter to provide to you ... Sorry!

[gcformeornot]

never worked for "employer x" after H1 transfer, perhaps you are out of status. What is your lawyer saying? You never transferred H1 back to emplyer#2?

[gcformeornot]

I have had this query before. I had an H1B stamping on my passport for a company I never worked for. (Company A)

But, when I applied for a H1B for a different company (Company B). My lawyer asked me if I ever worked for them and received any salary from them ... this was a RFE on my H1B case.

All I did was replied to my lawyer with a negative answer to both questions (worked, salary for Company A).

I got my new H1B approval I guess within 30 days of that RFE reply.

You might want to contact a lawyer to draft a reply to USCIS though. I do not have a copy of the letter to provide to you ... Sorry!

not be as simple as H1 renewal. G325 is pretty important form. The information provided on it is wrong. They could treat it as falsifying document.

OP please contact your lawyer asap.

[randomness]

H1B transfer to another company does not automatically invalidate the existing H1B.

From his post it seems he was always in status and on H1B with some employer. He at some point thought of joining employer X, filed for transfer but then refused to join them.

No problems with that.

[nrakkati]

I have had this query before. I had an H1B stamping on my passport for a company I never worked for. (Company A)

But, when I applied for a H1B for a different company (Company B). My lawyer asked me if I ever worked for them and received any salary from them ... this was a RFE on my H1B case.

All I did was replied to my lawyer with a negative answer to both questions (worked, salary for Company A).

I got my new H1B approval I guess within 30 days of that RFE reply.

You might want to contact a lawyer to draft a reply to USCIS though. I do not have a copy of the letter to provide to you ... Sorry!

Thanks, randomness, for the response.

[nrakkati]

never worked for "employer x" after H1 transfer, perhaps you are out of status. What is your lawyer saying? You never transferred H1 back to emplyer#2?

I have maintained valid status with my current employer (Employer #2). Employer #2 sponsored H1B was valid until 2008, then I used EAD. I have always maintained valid status. My only concern is I never worked for 'Employer X'.

Would you still see this as an issue...?

Thanks for the response.

[gapala]

never worked for "employer x" after H1 transfer, perhaps you are out of status. What is your lawyer saying? You never transferred H1 back to emplyer#2?

I do not think this is the case with OP, given that I quote, Employer X offiered me a job and sponsored my H1B and got it approved too". I guess this is a new H1B filing rather than a transfer from Employer #2 to Employer X. if this is a transfer, OP is in trouble as you suggested and the employment from transfer approval date till now will be considered "unauthorized work".

could you confirm whether Employer X thing is a transfer or fresh filing?

[gcformeornot]

a transfer or new H1?

[randomness]

In my case it was a new H1B ... for Company B.

I hope it is the same with him.

Thanks for clarifying.

[nrakkati]

not be as simple as H1 renewal. G325 is pretty important form. The information provided on it is wrong. They could treat it as falsifying document.

OP please contact your lawyer asap.

Thanks gcformeornot, for your response.

Info I provided on G325 is correct. I have only worked for 'Employer #1' and 'Employer #2', which I entered in G325. I have never worked for 'Employer X' and I did not mention 'Employer X' in G325.

Thanks.

[gapala]

Info I provided on G325 is correct. I have only worked for 'Employer #1' and 'Employer #2', which I entered in G325. I have never worked for 'Employer X' and I did not mention 'Employer X' in G325.
Thanks.

Well, It depends on whether you did a transfer from Employer #2 to Employer X OR Employer X filed a new H1B. If this is a transfer, you should not waste any more time on this forum, rather contact an attorney immediately and get help.

[nrakkati]

a transfer or new H1?

This is a different employer, so I am assuming it is new H1. If I remember correctly from my past research, H1 is always NEW when you file it with different employer, but I am not 100% sure....

thanks.

[gapala]

H1 is always new? it could be, but not in case of a transfer

Any way good luck.

[gc28262]

OP was never out of status as he was working for one of the employers on proper work authorization all the time. The only question is whether employer X canceled H1 ?Even if they didn't, it is employer's problem not OP's.

Anyways it is better to respond to this query through a lawyer.

[BECsufferer]

you never worked for X and has been working w/o break with #2 ... u said, I believe.

Write to USCIS simple explanation and show a proof such as HR letter stating your presence on active payroll continusly for all the term and run it through attorney, if you have. Else put together logically framed chronologically ordered history. Attach W2's for the years and demonstrate un-broken timeline.

If their is nothing to hid or falsify, ... don't worry about anything. Good news is your case is active. People here ( no offense to anyone) will split hairs trying to answer simple issue. Keep it simple and truthfull and nothing adverse will happen.

[piyu7444]

I have got an RFE for 485 application. USCIS is asking me for Employment Letter, Paystubs and W2 for the employer I NEVER worked. (I have typed exact message below)
*
This is my situation-
I worked for 'Employer #1' from Jan-2000 to Jan-2005
Then I started working with 'Employer #2' from Jan-2005 to present. Employer #2 filed my H1/Labor/140/485. I am still working for Employer #2
*
However, I thought of changing job in 2006 and 'Employer X' offered me a job and sponsored my H1 and it got approved too, but I changed my mind and decided to continue with my current employer (Employer #2) and I am still with Employer #2. Please note my latest H1B was sponsored by “Employer X”, but I never worked for this Employer.
*
Please advice-
1) What should I send to USCIS? As I don’t have (can’t get) Employment Letter, Paystubs and W2 for “Employer X”
2) Would you consider this as simple case or complicated?
3) Should I hire attorney? (I self filed my 485 in July-2007)
*
*
This is the exact text - (changed Employer names)
Service records indicate that you were granted an H1-B nonimmigrant worker classification for employment from DEC 11, 2006 to DEC 11, 2009 for “Employer X"-. However, according to the G-325a submitted with your application, you had only worked for "Employer #1" from Jan-2000 to Jan-2005 and for the "Employer #2" from Jan-2005 to the present. Please provide evidence that you were employed with “Employer X". Such evidence may include copies of: employment letter, pay stubs or w2s

Thank you for your time and help.

As long as you have had a valid h1b peition approved for employer 1 and employer 2 while you worked for them you are FINE.

According to my lawyer there is nuthing like a h1b transfer. When someone decides to move to a new sponsor that new sponsor files for a h1b via the petition but nuthing gets transfered, they need to refer to old h1b just to prove thatyou are legal and have been maintaining legal status.

in your case Employer X did so but you never joined that employer so you are fine. USCIS can get back to that emplyer if they have not cancelled your h1b as they are liable to pay you by law.

For real as you had an approved petition (latest but not the greatest) from Employer X but did not join them you are fine as long as you were still holding a valid petition with Emp # 2. You should respond back to RFE stating that you were maintaining stauts via emp#2 and were offered a job by EmpX which you never accepted. As a proof you should sen copies of pay stub for enitre period and w-2 + peition and visa copies.

Hope this helps!:)

[wandmaker]

I have got an RFE for 485 application. USCIS is asking me for Employment Letter, Paystubs and W2 for the employer I NEVER worked. (I have typed exact message below)
*
This is my situation-
I worked for 'Employer #1' from Jan-2000 to Jan-2005
Then I started working with 'Employer #2' from Jan-2005 to present. Employer #2 filed my H1/Labor/140/485. I am still working for Employer #2
*
However, I thought of changing job in 2006 and 'Employer X' offered me a job and sponsored my H1 and it got approved too, but I changed my mind and decided to continue with my current employer (Employer #2) and I am still with Employer #2. Please note my latest H1B was sponsored by “Employer X”, but I never worked for this Employer.
*
Please advice-
1) What should I send to USCIS? As I don’t have (can’t get) Employment Letter, Paystubs and W2 for “Employer X”
2) Would you consider this as simple case or complicated?
3) Should I hire attorney? (I self filed my 485 in July-2007)
*
*
This is the exact text - (changed Employer names)
Service records indicate that you were granted an H1-B nonimmigrant worker classification for employment from DEC 11, 2006 to DEC 11, 2009 for “Employer X"-. However, according to the G-325a submitted with your application, you had only worked for "Employer #1" from Jan-2000 to Jan-2005 and for the "Employer #2" from Jan-2005 to the present. Please provide evidence that you were employed with “Employer X". Such evidence may include copies of: employment letter, pay stubs or w2s

Thank you for your time and help.

Ask your attorney to write a letter in response to RFE and explaining the situation you never took the job with employer X though the H1B transfer or new is approved, this will clear the query of USCIS. One catch, you should have maintained a continuous employment with #2 and demonstrate the same to USCIS. Good luck!

Note H1 to L1, H4 to H1, L1 to H1 is completely different, it is change of status - H1 to H1 is not change of status, so there is no question that you recent h1 is valid and past is invalid. Get an attorney, Good weekend

[nrakkati]

H1 is always new? it could be, but not in case of a transfer

Any way good luck.

Can someone explain me how can i find a H1b is new or transferred?

I got all my H1B photocopies. Does it(new or transferred) show on H1B Document?

Thank you

[gapala]

The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.

you never worked for X and has been working w/o break with #2 ... u said, I believe.

Write to USCIS simple explanation and show a proof such as HR letter stating your presence on active payroll continusly for all the term and run it through attorney, if you have. Else put together logically framed chronologically ordered history. Attach W2's for the years and demonstrate un-broken timeline.

If their is nothing to hid or falsify, ... don't worry about anything. Good news is your case is active. People here ( no offense to anyone) will split hairs trying to answer simple issue. Keep it simple and truthfull and nothing adverse will happen.
I hope you assume this as a new H1B not a transfer or else your post is wrong.

As long as you have had a valid h1b peition approved for employer 1 and employer 2 while you worked for them you are FINE.

According to my lawyer there is nuthing like a h1b transfer. When someone decides to move to a new sponsor that new sponsor files for a h1b via the petition but nuthing gets transfered, they need to refer to old h1b just to prove thatyou are legal and have been maintaining legal status.

Really?

in your case Employer X did so but you never joined that employer so you are fine. USCIS can get back to that emplyer if they have not cancelled your h1b as they are liable to pay you by law. Pay him? Correct, only if OP work for them :) Employee "no show" is not considered as employer problem, han he had to cancel the H1. !:)


For real as you had an approved petition (latest but not the greatest) from Employer X but did not join them you are fine as long as you were still holding a valid petition with Emp # 2. You should respond back to RFE stating that you were maintaining stauts via emp#2 and were offered a job by EmpX which you never accepted. As a proof you should sen copies of pay stub for enitre period and w-2 + peition and visa copies.

Hope this helps!:)
Once the H1 transfer application is approved, Employer 2 is not considered as sponsor but employer X. Hence work with Employer 2 is not authorized.
Note H1 to L1, H4 to H1, L1 to H1 is completely different, it is change of status - H1 to H1 is not change of status, Correct, but its a change of sponsor and new sponsor is X.
so there is no question that you recent h1 is valid (Employer X after transfer) and past is invalid (employer #2) . I cannot agree with you more on this., but this is opposition to your earlier suggestion (see in red). Get an attorney, Good weekend !:)

[gapala]

Can someone explain me how can i find a H1b is new or transferred?

I got all my H1B photocopies. Does it(new or transferred) show on H1B Document?

Thank you

If its a transfer, your I-94 "number" will be same. Check to see if you have same I-94 number on any or all or atleast 2 of your I-94's including the one which they provided you at POE "across" any of your employers (1, 2 and X).

You can also check the application receipt date on them.. see if they are around April of those years? Most probably they will be new filings if the receipt date is around April oppose to September or November.

Hope this helps.

[piyu7444]

The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.

So in this case if I work for EMP A and apply for a h1b thru EMP B as soon as the MEP B's petition is approved I lose the approved peition with EMP A ??? I know the answer but want to see your take.......

I hope you assume this as a new H1B not a transfer or else your post is wrong.


Once the H1 transfer application is approved, Employer 2 is not considered as sponsor but employer X. Hence work with Employer 2 is not authorized.
Note H1 to L1, H4 to H1, L1 to H1 is completely different, it is change of status - H1 to H1 is not change of status, Correct, but its a change of sponsor.
so there is no question that you recent h1 is valid and past is invalid. I cannot agree with you more on this., but this is opposition to your earlier suggestion (see in red). Get an attorney, Good weekend


To answer your question Yes nuthing gets transfered. Every time its a new h1b there is no transfer of anything. You can have 2 or more valid approved petition from different employers but you can use only one at a time.

Pay - They are liable and USCIS can question them. All they will have to do is show that this employee (OP) was no show never joined the company so basically agree with you here.

[nrakkati]

OP was never out of status as he was working for one of the employers on proper work authorization all the time. The only question is whether employer X canceled H1 ?Even if they didn't, it is employer's problem not OP's.

Anyways it is better to respond to this query through a lawyer.

Thanks gc28262.

I was all the time in valid status. I was legal with 'employer #1' H1B and before it expires, I got H1B from 'employer #2', before 'employer #2' H1b expires, I got EAD (used with Employer #2 and still with 'employer #2').

At some point while with my current employer (employer #2), I thought of changing job and 'employer x' sponsored my H1b (I do not know if it is new H1 or transferred), but changed mind, and continued work with 'employer #2'. 'Employer #2' did not cancel my H1B at any time. I have called 'Employer X' and he said my H1B was canceled last week.

Thank you

[Ramba]

LAR (Last action Rule) will not applicable in this case. It is applicaple only in change of status ( like H1B to H4 or L1B to H1B). Not in H1B to H1B. If you continously maintained H1B status, you are OK, as long as the H1B approval is valid employer2. Employer 1 or Employer 100 can file H1B, even without your knowledge. Therfore, you dont worry. As you were authorized for employer 2 for that period and you worked for them in that period, you are OK. Exlain them in detail with the evidence of H1B approval for employer 2 and pay stubs. Any way, consult an attorney.

[gapala]

So in this case if I work for EMP A and apply for a h1b thru EMP B as soon as the MEP B's petition is approved I lose the approved peition with EMP A ??? I know the answer but want to see your take....... (No. as your scenario is quote, Emp B applied for a H1B (assume new filing). Emp A H1B is also valid as long as one of them is your primary sponsor with full time job. If Emp B transfers an approved H1B for Emp A, then Emp A as a sponsor cease to exist. Emp B becomes the new sponsor. Hence any work done for Emp A will be unauthorized.)

To answer your question Yes nuthing gets transfered. again Really? Every time its a new h1b there is no transfer of anything. You can have 2 or more valid approved petition from different employers (I agree, only if they both are new seperate H1B filings by 2 sponsors) but you can use only one at a time. Here you go again... (You can use as many as you want as long as you have a primary fulltime job with primary sponsor. other H1B's can be parttime jobs at the same time)

Pay - They are liable and USCIS can question them. All they will have to do is show that this employee (OP) was no show never joined the company so basically agree with you here.

What can I say to you?

[Canadian_Dream]

This is so confusing. But I-129 does have a section to identifying new vs. continuing employer. Isn't moving to a new employer automatically means that new paycheck MUST come from new employer regardless of whether existing employer has canceled the H1B or not. If you don't intend to work for new employer they MUST cancel the H1-B or you should request them to cancel it ? Otherwise it will bound to generate the confusion that's apparent from the I/O looking at your petition.
I am thinking it can be interpreted either way, but nothing in the laws says one way or the other. It is all up to I/O's interpretation.

IMHO: Right think would have be:
1. Employer-X Files new H1
2. Employer-2 Withdraws existing H1
3. You changed your mind
4. Employer X Withdraws H1
5. Employer 2 Files a NEW H1

http://www.uscis.gov/files/form/i-129.pdf

[gapala]

LAR (Last action Rule) will not applicable in this case. It is applicaple only in change of status ( like H1B to H4 or L1B to H1B). Not in H1B to H1B. If you continously maintained H1B status, you are OK, as long as the H1B approval is valid employer2. Employer 1 or Employer 100 can file H1B, even without your knowledge. Therfore, you dont worry. As you were authorized for employer 2 for that period and you worked for them in that period, you are OK. Exlain them in detail with the evidence of H1B approval for employer 2 and pay stubs. Any way, consult an attorney.

Trouble is only if this is a transfer. By the way LAR is applicable on status (L1,H1, H4 ect.). Work for Emp 2 is whether "authorized" by CIS or not, depending on New H1 vs. Transfer.

[Canadian_Dream]

That's not right, you have to express consent before an employer can file on your behalf. Any filing without your consent MIGHT be misrepresentation or fraud.
LAR (Last action Rule) Employer 1 or Employer 100 can file H1B, even without your knowledge. Therfore, you dont worry.

[piyu7444]

What can I say to you? I guess nuthing :)

Check this post # 9

http://immigrationvoice.org/forum/showthread.php?t=24470&highlight=transfer

And answer this may be I can learn something from you :)

Originally Posted by gapala
The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.
[COLOR="DarkRed"]
So in this case if I work for EMP A and apply for a h1b thru EMP B as soon as the EMP B's petition is approved I lose the approved peition with EMP A ??? COLOR]

[nrakkati]

you never worked for X and has been working w/o break with #2 ... u said, I believe.

Write to USCIS simple explanation and show a proof such as HR letter stating your presence on active payroll continusly for all the term and run it through attorney, if you have. Else put together logically framed chronologically ordered history. Attach W2's for the years and demonstrate un-broken timeline.

If their is nothing to hid or falsify, ... don't worry about anything. Good news is your case is active. People here ( no offense to anyone) will split hairs trying to answer simple issue. Keep it simple and truthfull and nothing adverse will happen.




Yes. Your assumption
"you never worked for X and has been working w/o break with #2 ... u said, I believe"
is correct.

Only thing that I want to point out is - Employer X sponsored my H1B (i do not know it is new H1 or transferred), but never moved from current Employer. Maintained valid status with current employer.

When it comes to immigration stuff, I would not do any 'wrong doing' intentionally, not even as a last option.

Not sure if I crossed the line here (obviously unknowingly) by having H1B with 'employer x' , but I was told it's all legal.

Thanks for your input.

[nrakkati]

As long as you have had a valid h1b peition approved for employer 1 and employer 2 while you worked for them you are FINE.

According to my lawyer there is nuthing like a h1b transfer. When someone decides to move to a new sponsor that new sponsor files for a h1b via the petition but nuthing gets transfered, they need to refer to old h1b just to prove thatyou are legal and have been maintaining legal status.

in your case Employer X did so but you never joined that employer so you are fine. USCIS can get back to that emplyer if they have not cancelled your h1b as they are liable to pay you by law.

For real as you had an approved petition (latest but not the greatest) from Employer X but did not join them you are fine as long as you were still holding a valid petition with Emp # 2. You should respond back to RFE stating that you were maintaining stauts via emp#2 and were offered a job by EmpX which you never accepted. As a proof you should sen copies of pay stub for enitre period and w-2 + peition and visa copies.

Hope this helps!:)

Thanks piyu7444.

[nrakkati]

Ask your attorney to write a letter in response to RFE and explaining the situation you never took the job with employer X though the H1B transfer or new is approved, this will clear the query of USCIS. One catch, you should have maintained a continuous employment with #2 and demonstrate the same to USCIS. Good luck!

Note H1 to L1, H4 to H1, L1 to H1 is completely different, it is change of status - H1 to H1 is not change of status, so there is no question that you recent h1 is valid and past is invalid. Get an attorney, Good weekend

Thanks wandmaker.

[gapala]

I guess nuthing :)

Check this post # 9

http://immigrationvoice.org/forum/showthread.php?t=24470&highlight=transfer
And answer this may be I can learn something from you :)
[COLOR="DarkRed"]
So in this case if I work for EMP A and apply for a h1b thru EMP B as soon as the EMP B's petition is approved I lose the approved peition with EMP A ??? COLOR]

In case you missed it, I did answer your question, read the other thread you will find it and I do not want to say "sure you have a lot to learn" not only from me but from others as well on this forum. Lets learn together through these discussions. :)

[nrakkati]

If its a transfer, your I-94 "number" will be same. Check to see if you have same I-94 number on any or all or atleast 2 of your I-94's including the one which they provided you at POE "across" any of your employers (1, 2 and X).

You can also check the application receipt date on them.. see if they are around April of those years? Most probably they will be new filings if the receipt date is around April oppose to September or November.

Hope this helps.

Thanks gapala, for your input. will verify it and post it here.

[piyu7444]

[QUOTE=gapala;328433]The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.


The above underlined text is not correct. When USCIS approve a new peition ( call it transfer if you would like to although....) they do not cancel the old unless the employer who owns that petition sends a request to USCIS to cancel it. :)

[piyu7444]

Thanks piyu7444.

You are in GOOD state with regard to the query you have to reply to....

If I were you I would still have a good lawyer reply to this.........its better to be safe and this should not be more than 500$ work.

All the best wishes to you! :) :) :)

[dilbert_cal]

never worked for "employer x" after H1 transfer, perhaps you are out of status. What is your lawyer saying? You never transferred H1 back to emplyer#2?

H1 doesnt work as you are interpreting. OP was working for 'A' and had a valid H1. At some point of time, he got a job offer from X and had his H1 transferred to X. Even though his new H1 is approved, his old H1 is still valid. It is valid as long as OP doesnt join X. Since the OP never left A and never joined X, he was always in status. OP -> this should be a simple case. Since you have documentation to prove that you were in status always and since you never joined X , you dont have paystubs and that should be perfectly fine as long as you never left A.

[snathan]

never worked for "employer x" after H1 transfer, perhaps you are out of status. What is your lawyer saying? You never transferred H1 back to emplyer#2?

Are you sure what are you talking about...? This is not true

[snathan]

H1 is always new? it could be, but not in case of a transfer

Any way good luck.

There is nothing really called transfer. When you are filing for the first time its counted against the cap. Otherwise its not. So when you are transfering the H1

1. You are not counted against the cap
2. Need to prove you are in status.

[snathan]

The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.


I hope you assume this as a new H1B not a transfer or else your post is wrong.

Do not give misleading information. When you do the transfer the original visa is not cancelled. In fact you can have more than one H1B at the same time and work for them. For example two part time jobs for different employers. But the only catch you should always work only for the sponsoring company. If you decide not to join them at all, you can do so. But you have to maintain the status thru your current employement or another employer.

For more information on this check the murthy.com

[snathan]

To answer your question Yes nuthing gets transfered. Every time its a new h1b there is no transfer of anything. You can have 2 or more valid approved petition from different employers but you can use only one at a time.

Pay - They are liable and USCIS can question them. All they will have to do is show that this employee (OP) was no show never joined the company so basically agree with you here.

I was also under the same assumption. But I came to know that you can work for more than one sponsoring employer at a time.

[gapala]

There is nothing really called transfer. When you are filing for the first time its counted against the cap. Otherwise its not. So when you are transfering the H1

1. You are not counted against the cap
2. Need to prove you are in status.

Yes there is and it is called visa portability. :) this is for you as well piyu, do not jump into summary so fast.

Ok, Here's what law says about so called "transfer"

D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;
(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.

Further it says,

The Service expects, therefore, to propose a rule that would afford H-lB beneficiaries, who are no longer working for the initial H-lB employer, some reasonable period of time such as 60 days after leaving the initial H-lB employer to begin working for a new H-lB petitioning employer under the portability provisions. It is important to note that such a proposed rule would not, of course, take effect until it has been published as a final rule, after notice and comment, and any revisions. This prospective statement of policy is provided solely for informational purposes to Service personnel and shall not be utilized as a standard of adjudication in cases involving portability issues, unless and until promulgation of a final rule implementing AC21 105 with such an interpretation. Service personnel will be notified of any changes in the processing of AC21 benefits that may occur upon the effective date of a final rule.

There are few other memo's on this I will try to post the links for reference

[gc28262]

http://www.murthy.com/news/n_immrum.html

[amsgc]

Dude,
Please stop confusing people - there is no such thing as a H-1B transfer.

It is a misnomer. When you move to a new employer, the new employer files a "new petition" with a request to extend your stay.
If you wish to continue working for your current employer, you can do so.

Refer to snathan's post, he has summed it up correctly.

The original poster is good to go - all he has to do is inform USCIS that the never worked for the new employer, and therefore, there are no paystubs, w2forms, etc.


Yes there is and it is called visa portability. :) this is for you as well piyu, do not jump into summary so fast. When you say some one is wrong, you have to quote law.

Ok, Here's what law says about so called "transfer"

. . .

[piyu7444]

Thanks piyu7444.

Yes there is and it is called visa portability. :)

Ok, Here's the law says about so called "transfer"

D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;
(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.

Further it says,

The Service expects, therefore, to propose a rule that would afford H-lB beneficiaries, who are no longer working for the initial H-lB employer, some reasonable period of time such as 60 days after leaving the initial H-lB employer to begin working for a new H-lB petitioning employer under the portability provisions. It is important to note that such a proposed rule would not, of course, take effect until it has been published as a final rule, after notice and comment, and any revisions. This prospective statement of policy is provided solely for informational purposes to Service personnel and shall not be utilized as a standard of adjudication in cases involving portability issues, unless and until promulgation of a final rule implementing AC21 105 with such an interpretation. Service personnel will be notified of any changes in the processing of AC21 benefits that may occur upon the effective date of a final rule.

There are few other memo's on this I will try to post the links for reference

Good information but 'transfer' is a widely used word which is technically incorrect. "Transfer" never happens, its always a NEW PETITION when one switches employer or applies (through an employer) for authorization to work for new or 2nd employer. Probably 95% immigrant community including lawyers use the term 'transfer' but it is indeed incorrect.



Thanks to all who shared knowledge and pitched in.

[snathan]

http://www.murthy.com/news/n_immrum.html




Yes....Each employer must file for New H1B. But it does not invalidate the current H1B, untill its revoked by the employer.

[piyu7444]

I was also under the same assumption. But I came to know that you can work for more than one sponsoring employer at a time.

Thanks snathan !

*Last post for this thread. I am done with it. OP got his answer and that was the aim. Cant be here endlessly. :)

[snathan]

Yes there is and it is called visa portability. :) this is for you as well piyu, do not jump into summary so fast.

Ok, Here's what law says about so called "transfer"

D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;
(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.

Further it says,

The Service expects, therefore, to propose a rule that would afford H-lB beneficiaries, who are no longer working for the initial H-lB employer, some reasonable period of time such as 60 days after leaving the initial H-lB employer to begin working for a new H-lB petitioning employer under the portability provisions. It is important to note that such a proposed rule would not, of course, take effect until it has been published as a final rule, after notice and comment, and any revisions. This prospective statement of policy is provided solely for informational purposes to Service personnel and shall not be utilized as a standard of adjudication in cases involving portability issues, unless and until promulgation of a final rule implementing AC21 105 with such an interpretation. Service personnel will be notified of any changes in the processing of AC21 benefits that may occur upon the effective date of a final rule.

There are few other memo's on this I will try to post the links for reference

All I can say is you are confusing your self and others on this....I am not posting any more this thread.

Just call your attorney and verify the same

Good Luck.

[gapala]

Do not give misleading information. When you do the transfer the original visa is not cancelled. In fact you can have more than one H1B at the same time and work for them. For example two part time jobs for different employers. But the only catch you should always work only for the sponsoring company. If you decide not to join them at all, you can do so. But you have to maintain the status thru your current employement or another employer.

For more information on this check the murthy.com

Dude, I have to tell you the same, do not give misleading information. you need to have a full time position for H1B. there is a minimum number of hours per week that you specify on your Labor condition. 2 part time doesn't cut it. As I have mentioned before, you may have multiple sponsors but one of the sponsors should be primary and you work full time with him or the minimum number of hours per week as per LC. other one could be part time. But there needs to be 2 seperate independent I-129's filed by both employers for you to do this.

[desi3933]

Yes there is and it is called visa portability. :) this is for you as well piyu, do not jump into summary so fast.

Ok, Here's what law says about so called "transfer"

D. AC21 105 -- Visa portability
.....

gapala -

You are mixing apples and oranges.

Visa Portability (as per AC-21) allows one to start employment after filing for H-1B petition, before H-1B petition os approved.

H-1B Transfer does not invalidate current employment status (if on H-1B status) and beneficiary can continue working for original Employer A based on that I-797 validity dates.

OP needs to explain to USCIS that he never switched jobs on new H-1B approval and continued job on the basis of original I-797 dates. He was not out of status.


_______________________
Not a legal advice.
US citizen of Indian origin

[gapala]

Yes....Each employer must file for New H1B. But it does not invalidate the current H1B, untill its revoked by the employer.

Yeah! it does not invalidate it because its a "new H1B". Not same as, lets call it portability.

[desi3933]

Dude, I have to tell you the same, do not give misleading information. you need to have a full time position for H1B. there is a minimum number of hours per week that you specify on your Labor condition. 2 part time doesn't cut it. As I have mentioned before, you may have multiple sponsors but one of the sponsors should be primary and you work full time with him or the minimum number of hours per week as per LC. other one could be part time. But there needs to be 2 separate independent I-129's filed by both employers for you to do this.

>> you need to have a full time position for H1B.
Incorrect. H-1B can be filed for part time position. Refer form I-129.

>> you may have multiple sponsors but one of the sponsors should be primary and you work full time with him
Incorrect again. There is no requirement to work full time with one of the Employers. Hours are determined by job offer and hence mentioned in LCA. But hours could be 12 hours for both Employer A as well as B.

Again, there is no requirement that one of the job must be full time.


_______________________
Not a legal advice.
US citizen of Indian origin

[gapala]

gapala -

You are mixing apples and oranges.

Visa Portability (as per AC-21) allows one to start employment after filing for H-1B petition, before H-1B petition os approved. only if he already has a approved H1b from other sponsor

H-1B Transfer does not invalidate current employment status (if on H-1B status) and beneficiary can continue working for original Employer A based on that I-797 validity dates. (status remains same due to transfer... but the question is whether some one can work for a non sponsor? My take is NO.)

OP needs to explain to USCIS that he never switched jobs on new H-1B approval and continued job on the basis of original I-797 dates. He was not out of status.
_______________________
Not a legal advice.
US citizen of Indian origin
see in red.
Desi, with due respect, I have to clarify this, I am not talking about H1B status here I am talking about "unauthorized work" part upon change of sponsor.

[desi3933]

Yeah! it does not invalidate it because its a "new H1B". Not same as, lets call it portability.

This is not visa portability as defined by AC-21.

[desi3933]

Desi, with due respect, I have to clarify this, I am not talking about H1B status here I am talking about "unauthorized work" part upon change of sponsor.

Please explain.

[gapala]

This is not visa portability as defined by AC-21.
Not same as, lets call it portability.
That is what I said. Its not portability.

[nrakkati]

Thanks gapala, for your input. will verify it and post it here.

My 'Employer #2' H1B I-94 and 'Employer X' H1B I-94 numbers matches with I-94 number that I got at 'POE'.
Receipt Data is July-2006 for 'Employer X' H1B.

According to Gapala's logic, my H1 is transfer, not NEW.

I am assuming I-94 only changes at 'POE'.

This is what I observed after carefully reviewing my documents:-
If you go out of the country and come back in to US on same H1B, say n times, you will get a different I-94 number each time. but if you apply n H1B's from n employers during your continues stay in USA, you will get same I-94 number. Again, this is my observation and may not be correct.
Experts....please comment on this (wrong or right).

If my above statement is correct, then Gapala's I-94 number logic to differentiate 'new h1b' vs 'transferred h1b' is incorrect.

I think this issue comes down to - 'new H1B & transfer H1B'

Based on my past research, H1B is always NEW. There is nothing called 'transferring H1B', but I am sure Gapala will not agree with me or some other IV members here on this...

Gapala, Can I request the source for your argument(new H1B &Transfer H1B are different.) . Was this your observation from forums or from attorney or articles from murthy.com?

Again, Thanks Gapala, for your time and input.

[nrakkati]

You are in GOOD state with regard to the query you have to reply to....

If I were you I would still have a good lawyer reply to this.........its better to be safe and this should not be more than 500$ work.

All the best wishes to you! :) :) :)

Thanks Piyu7444, for a good suggestion.

[nrakkati]

H1 doesnt work as you are interpreting. OP was working for 'A' and had a valid H1. At some point of time, he got a job offer from X and had his H1 transferred to X. Even though his new H1 is approved, his old H1 is still valid. It is valid as long as OP doesnt join X. Since the OP never left A and never joined X, he was always in status. OP -> this should be a simple case. Since you have documentation to prove that you were in status always and since you never joined X , you dont have paystubs and that should be perfectly fine as long as you never left A.


Thanks dilbert_cal.

[Saralayar]

but if you say so. Maybe other GURUS can chip in with more information. But doesn't seem logical.
randomness is correct.

[desi3933]

My 'Employer #2' H1B I-94 and 'Employer X' H1B I-94 numbers matches with I-94 number that I got at 'POE'.
Receipt Data is July-2006 for 'Employer X' H1B.
......

Could you please provide following info
1. I-797 dates for Employer 2 and X
2. Last Date of entry in USA
3. Date when I-485 was filed

I-94 number being same does not mean much. One can have same I-94 number for COS from H1 to F1. On the other hand, one can have different I-94 with H-1B transfer. Typically, H-1B transfer means new H-1B petition for the beneficiary who is/was in H-1B status and is not subject to H-1 cap.

If beneficiary's initial H-1B was counted against cap in last 6 years, then subsequent H-1B petitions are not subject to cap and usually referred as H-1B transfers.


___________________
Not a legal advice

[satyasaich]

I have got an RFE for 485 application. USCIS is asking me for Employment Letter, Paystubs and W2 for the employer I NEVER worked. (I have typed exact message below)
*
This is my situation-
I worked for 'Employer #1' from Jan-2000 to Jan-2005
Then I started working with 'Employer #2' from Jan-2005 to present. Employer #2 filed my H1/Labor/140/485. I am still working for Employer #2
*
However, I thought of changing job in 2006 and 'Employer X' offered me a job and sponsored my H1 and it got approved too, but I changed my mind and decided to continue with my current employer (Employer #2) and I am still with Employer #2. Please note my latest H1B was sponsored by “Employer X”, but I never worked for this Employer.
*
Please advice-
1) What should I send to USCIS? As I don’t have (can’t get) Employment Letter, Paystubs and W2 for “Employer X”
2) Would you consider this as simple case or complicated?
3) Should I hire attorney? (I self filed my 485 in July-2007)
*
*
This is the exact text - (changed Employer names)
Service records indicate that you were granted an H1-B nonimmigrant worker classification for employment from DEC 11, 2006 to DEC 11, 2009 for “Employer X"-. However, according to the G-325a submitted with your application, you had only worked for "Employer #1" from Jan-2000 to Jan-2005 and for the "Employer #2" from Jan-2005 to the present. Please provide evidence that you were employed with “Employer X". Such evidence may include copies of: employment letter, pay stubs or w2s

Thank you for your time and help.

First of all,based on the information you provided i believe that
1. You are continuously employed WITHOUT any gap, meaning working 40 hrs/ week and clean history of pay stubs, W2s etc
2. You have been working for only one employer at any given point of time, as a full time employee
IF What i said above is true, then RFE makes no sense. because based on the H1B rules and regulations, one can have multiple H1Bs BUT can only work for ONE employer as full time, meaning 40hrs/week.
It is also completely legal that one can work up to 20hrs/week for second employer by paying proper taxes . but in your case i believe that you have worked for only one employer and i think you can show the evidence.
Please contact your attorney and draft a response carefully

Please correct me if were wrong

[nrakkati]

Could you please provide following info
1. I-797 dates for Employer 2 and X
2. Last Date of entry in USA
3. Date when I-485 was filed

I-94 number being same does not mean much. One can have same I-94 number for COS from H1 to F1. On the other hand, one can have different I-94 with H-1B transfer. Typically, H-1B transfer means new H-1B petition for the beneficiary who is/was in H-1B status and is not subject to H-1 cap.

If beneficiary's initial H-1B was counted against cap in last 6 years, then subsequent H-1B petitions are not subject to cap and usually referred as H-1B transfers.


___________________
Not a legal advice

Thanks desi3933, for your response.

1. I-797 dates for Employer 2 and X
MAR-2005 and JUL-2006
2. Last Date of entry in USA
FEB-2003
3. Date when I-485 was filed
JUL-2007

Thank you

[nrakkati]

First of all,based on the information you provided i believe that
1. You are continuously employed WITHOUT any gap, meaning working 40 hrs/ week and clean history of pay stubs, W2s etc
2. You have been working for only one employer at any given point of time, as a full time employee
IF What i said above is true, then RFE makes no sense. because based on the H1B rules and regulations, one can have multiple H1Bs BUT can only work for ONE employer as full time, meaning 40hrs/week.
It is also completely legal that one can work up to 20hrs/week for second employer by paying proper taxes . but in your case i believe that you have worked for only one employer and i think you can show the evidence.
Please contact your attorney and draft a response carefully

Please correct me if were wrong

Thanks Satya. Your two assumptions are correct.

[saileshdude]

As so many members have posted there is no such thing as H1 transfer. If OP continued to work for employer# 2 without joining employer X that is fine as long as OP's employer 2 did not revoke the H1 petition. So OP should be fine , all he has to do is point that he did not accept employer X offer and decided to continue with current employer (i.e. #2) and his work with employer 2 was authorized based on the continued validity of h1 petition of employer 2. Now I saw that OP mentioned somewhere that he used EAD when his H1 with employer 2 expired. This could be a potential reason for the RFE. Here's my take on it:
When OP's H1 ultimately expired there were two possible work authorizations which OP could have used : Join the employer X on H1 since that employer did not revoke the h1 petition even though he did not join them OR used EAD with either employer 2 or employer X. The OP got this RFE for I-485. If you are doing AOS from H1 the burden is on you to prove that even while your I-485 is pending you have not engaged in unauthorized work. I just feel that the IO is doing an extensive scrutiny of the OP's application and trying to make sure that OP did not engage in unauthorized work at point.

In any case the OP should get a good lawyer.

[gapala]

As so many members have posted there is no such thing as H1 transfer. If OP continued to work for employer# 2 without joining employer X that is fine as long as OP's employer 2 did not revoke the H1 petition. So OP should be fine , all he has to do is point that he did not accept employer X offer and decided to continue with current employer (i.e. #2) and his work with employer 2 was authorized based on the continued validity of h1 petition of employer 2. Now I saw that OP mentioned somewhere that he used EAD when his H1 with employer 2 expired. This could be a potential reason for the RFE. Here's my take on it:
When OP's H1 ultimately expired there were two possible work authorizations which OP could have used : Join the employer X on H1 since that employer did not revoke the h1 petition even though he did not join them OR used EAD with either employer 2 or employer X. The OP got this RFE for I-485. If you are doing AOS from H1 the burden is on you to prove that even while your I-485 is pending you have not engaged in unauthorized work. I just feel that the IO is doing an extensive scrutiny of the OP's application and trying to make sure that OP did not engage in unauthorized work at point.

In any case the OP should get a good lawyer.

This exactly is my point "unauthorized work" part of the game.

[desi3933]

Thanks desi3933, for your response.

1. I-797 dates for Employer 2 and X
MAR-2005 and JUL-2006
2. Last Date of entry in USA
FEB-2003
3. Date when I-485 was filed
JUL-2007

Thank you

>> I-797 dates for Employer 2 and X
>> MAR-2005 and JUL-2006

What is the date range for these two employers?
I-797 notice always has date range for its validity.

[nrakkati]

>> I-797 dates for Employer 2 and X
>> MAR-2005 and JUL-2006

What is the date range for these two employers?
I-797 notice always has date range for its validity.

Employer 2
MAR-2005 to MAR-2008
Employer X
JUL2006 to JUL-2009

Applied 485 in JUL-2007
Applied EAD in JUL-2007 along with 485. Valid from 09-2007 to 09-2008
Applied another EAD in 2008 before 1st EAD expires, which is good until 2010

thank you.

[desi3933]

Employer 2
MAR-2005 to MAR-2008
Employer X
JUL2006 to JUL-2009

Applied 485 in JUL-2007
Applied EAD in JUL-2007 along with 485. Valid from 09-2007 to 09-2008
Applied another EAD in 2008 before 1st EAD expires, which is good until 2010

thank you.

Great!

With this info, your attorney can easily demonstrate that you were authorized to work for "Employer 2" at all times since last entry in the USA until date of filing for I-485.

There is nothing to worry about, IMHO.

Good Luck.

[saileshdude]

Great!

With this info, your attorney can easily demonstrate that you were authorized to work for "Employer 2" at all times since last entry in the USA until date of filing for I-485.

There is nothing to worry about, IMHO.

Good Luck.

Thats what people need to understand that if u are doing AOS from H1 then you have to make sure that 1) Either you continue to use H1 with the proper employer or 2) If you decide to use EAD that you update the I-9 form properly with respective employers. You cannot involve into unauthorized work like say your h1 expired with current employer and you did not update your I-9 form to use EAD and say 4 months down the road you put in the new I-9 form with EAD info. Those 4 months of work would be considered unauthorized and yes it will impact your I-485.

[desi3933]

The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work". Do not consider this as illegal presence, as his legal presence is controlled by a valid I-94.

This is incorrect (highlighted in Blue above). Just because new H-1B petition is approved, old I-797 is not canceled. Again, gapala, understand this, if old I-797 is not canceled, beneficiary is authorized to work for old employer for I-797 validity dates. Unless, Employer request to cancel H-1B petition, employee can come back to work for that employer even after starting working for Employer B.

Gapala - One more time, during the validity dates of I-797, employee working for old employer is not "unauthorized work". OP was authorized to work for "Employer 2".

If its a transfer, your I-94 "number" will be same. Check to see if you have same I-94 number on any or all or atleast 2 of your I-94's including the one which they provided you at POE "across" any of your employers (1, 2 and X).

As I stated beore, matching I-94 number does not mean much. I-94 number will be same for cases of change of status from, say, H-1B to B1. On the other hand, I-94 number could be different for H-1B transfer.

Gapala - I have noted that you provide lot of incorrect info in your posts. Please be careful in what you write.


_______________________
Not a legal advice.
US citizen of Indian origin

[gapala]

OK. loud and clear Desi :D

Now, I have provided the reference to part of AC21 law with my interpretation, which allows visa portability (unofficially known as transfer) from one sponsor to another and excempt from numeric limits.

All I hear is "incorrect", "wrong" followed by individual interpretation or opinion. I respect all disagreement part, Which may be/not be accurate. Why don't you quantify your comments with references to law or CIS memo? Don't you think discussion need to be healthy and fair?

Now, I have a lot of filthy and rediculous offensive messages on the discussion threads with reds, which I would not like to post in public. If this is what our anonymous so called "highly skilled" can bring to the table, then I am speachless.

[gc28262]

OK. loud and clear Desi :D

Now, I have provided the reference to part of AC21 law with my interpretation, which allows visa portability (unofficially known as transfer) from one sponsor to another and excempt from numeric limits.

All I hear is "incorrect", "wrong" followed by individual interpretation or opinion. I respect all disagreement part, Which may be/not be accurate. Why don't you quantify your comments with references to law or CIS memo? Don't you think discussion need to be healthy and fair?

Now, I have a lot of filthy and rediculous offensive messages on the discussion threads with reds, which I would not like to post in public. If this is what our anonymous so called "highly skilled" can bring to the table, then I am speachless.

gapala,

This thread is not a discussion thread. OP asked a question. We need to provide him a precise and satisfactory answer. There is no point in confusing him with endless discussion.

His situation is very simple. There is no question of out of status here to begin with. OP knows this very well. Many of the people who responded here ( excluding me ) are quite knowledgeable in immigration matters.

When in doubt, always refer lawyer's newsletter/USCIS memos rather than us trying to interpret the law. We are no lawyers.

[snathan]

OK. loud and clear Desi :D

Now, I have provided the reference to part of AC21 law with my interpretation, which allows visa portability (unofficially known as transfer) from one sponsor to another and excempt from numeric limits.

All I hear is "incorrect", "wrong" followed by individual interpretation or opinion. I respect all disagreement part, Which may be/not be accurate. Why don't you quantify your comments with references to law or CIS memo? Don't you think discussion need to be healthy and fair?

Now, I have a lot of filthy and rediculous offensive messages on the discussion threads with reds, which I would not like to post in public. If this is what our anonymous so called "highly skilled" can bring to the table, then I am speachless.

Its not personel opinion or interpretation. I know people who have done this.

Working fo company #1
Got offer from company X. But didnt join.
Got another offer from company #2. Joined the same employer.
After two years applied for extension from employer #2.

Did not have any issues like out of status. But only thing is, there is no EAD is involved here. Offer from company X did not invalidate the H1B from company #1. Thats the whole point.

Clearly if you have gap between your H1B and EAD filing, its out of status or unauthorised work. But it has nothing to do the new H1B or old H1B. Even with the same employer its an issue if there is a gap.

[desi3933]

....
All I hear is "incorrect", "wrong" followed by individual interpretation or opinion. I respect all disagreement part, Which may be/not be accurate. Why don't you quantify your comments with references to law or CIS memo? Don't you think discussion need to be healthy and fair?
....

There you go. Here is the link for the opinion letter
www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf
(http://immigrationvoice.org/forum/www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
Read it, Understand it and then please let me know if you still think that OP was in "unauthorized work", as this is what you have written before

The H1B visa belongs, in effect, to the company that sponsors it. You cannot work for any other company on that visa other than sponsor. If this is a transfer, then, In a so-called "visa transfer" what actually happens is that the initial visa is cancelled in favor of another one issued for the new employer. What that means is OP's work with old employer is considered as "unauthorized work".
....

[Canadian_Dream]

Desi,
Time and again I have noticed that you backed your suggestions with relevant documents. I for one, commend you for the work you do on this forum. I was almost thinking this case might set a precedent for dormant H1B, but apparently not. The other information that you provided on the other forum that was completely new to me was, when you pulled out the document regarding GC for the child of permanent resident born abroad.

Thank you for good work.


There you go. Here is the link for the opinion letter
www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf
(http://immigrationvoice.org/forum/www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
Read it, Understand it and then please let me know if you still think that OP was in "unauthorized work", as this is what you have written before

[nrakkati]

Great!

With this info, your attorney can easily demonstrate that you were authorized to work for "Employer 2" at all times since last entry in the USA until date of filing for I-485.

There is nothing to worry about, IMHO.

Good Luck.

Thanks desi3933. That's very comforting!

[wandmaker]

Thanks desi3933. That's very comforting!

As I mentioned earlier, it is a simple RFE. In addition, Desi has backedup his suggestion with the proof - Just ask your attorney to respond to the RFE. Post back when you get updates, it will help IV community, who are in similar situation and also the members who do not have a proper understanding of statuses.:D

[wandmaker]

There you go. Here is the link for the opinion letter
www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf (http://www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
(http://immigrationvoice.org/forum/www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
Read it, Understand it and then please let me know if you still think that OP was in "unauthorized work", as this is what you have written before

Good work! Now, it is gapala's turn to read and understand and come back with the opinion or disagreement.

[nrakkati]

There you go. Here is the link for the opinion letter
www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf
(http://immigrationvoice.org/forum/www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
Read it, Understand it and then please let me know if you still think that OP was in "unauthorized work", as this is what you have written before

Again, Thanks a bunch Desi3933. My case is pretty much same as 'Scenario 1' in this Murthy document.

Desi3933 cleared the 99% of the cloud surrounded this issue by pointing to murthy.com (I maintained valid status with 'Employer #2' and this doc says I am good to go). Thank you very much Desi3933.


Apologize for extending the topic....but one of the 'still open' question is what if the Second Employer H1B is 'NEW' and what if it is 'Transfer'.
Murthy document does not say about the Company B H1B is NEW or TRANSFERRED.

If New H1B and Transferred H1B are same....then problem is solved.

Many of you here said both are same. I assume so too. But, we haven't proved Gapala is wrong yet (no hard feelings gapala. it is not my intention to hurt you). if 'NEW and TRANSFERRED' are different, Murthy should have mentioned in her Document, but she did not do that. So, can we safely assume, that 'NEW and TRANSFERRED' are same.

Thank you everyone who responding to my post.

[GreenCardLegion]

I have got an RFE for 485 application. USCIS is asking me for Employment Letter, Paystubs and W2 for the employer I NEVER worked. (I have typed exact message below)
*
This is my situation-
I worked for 'Employer #1' from Jan-2000 to Jan-2005
Then I started working with 'Employer #2' from Jan-2005 to present. Employer #2 filed my H1/Labor/140/485. I am still working for Employer #2
*
However, I thought of changing job in 2006 and 'Employer X' offered me a job and sponsored my H1 and it got approved too, but I changed my mind and decided to continue with my current employer (Employer #2) and I am still with Employer #2. Please note my latest H1B was sponsored by “Employer X”, but I never worked for this Employer.
*
Please advice-
1) What should I send to USCIS? As I don’t have (can’t get) Employment Letter, Paystubs and W2 for “Employer X”
2) Would you consider this as simple case or complicated?
3) Should I hire attorney? (I self filed my 485 in July-2007)
*
*
This is the exact text - (changed Employer names)
Service records indicate that you were granted an H1-B nonimmigrant worker classification for employment from DEC 11, 2006 to DEC 11, 2009 for “Employer X"-. However, according to the G-325a submitted with your application, you had only worked for "Employer #1" from Jan-2000 to Jan-2005 and for the "Employer #2" from Jan-2005 to the present. Please provide evidence that you were employed with “Employer X". Such evidence may include copies of: employment letter, pay stubs or w2s

Thank you for your time and help.


Your post absolutely doesnt make sense. You are asking us here "485 RFE and USCIS asking paystubs for employer you never worked"

This does not seem to be a 485 RFE but a H1 RFE. Put some sense into the post before posting here and confusing people. How can yours be a 485 RFE when employer X never sponsored your GC and when USCIS is asking paystubs from Employer X for H1 transfer and when your GC is still running with Employer 2. Senseless post.

[nrakkati]

As I mentioned earlier, it is a simple RFE. In addition, Desi has backedup his suggestion with the proof - Just ask your attorney to respond to the RFE. Post back when you get updates, it will help IV community, who are in similar situation and also the members who do not have a proper understanding of statuses.:D

Sure. I will update the thread.
Thank you

[nrakkati]

Your post absolutely doesnt make sense. You are asking us here "485 RFE and USCIS asking paystubs for employer you never worked"

This does not seem to be a 485 RFE but a H1 RFE. Put some sense into the post before posting here and confusing people. How can yours be a 485 RFE when employer X never sponsored your GC and when USCIS is asking paystubs from Employer X for H1 transfer and when your GC is still running with Employer 2. Senseless post.

Well...I got the mail from USCIS for I-485 RFE. Not for H1 as you thought.

Please note all H1Bs, F1s, visas....are part of 485 application.

Thank you

[GreenCardLegion]

Well...I got the mail from USCIS for I-485 RFE. Not for H1 as you thought.

Please note all H1Bs, F1s, visas....are part of 485 application.

Thank you
Oh my apologies then. I thought this was purely an H1 RFE. Crazy are the ways of USCIS. Good Luck with the RFE reply process. Keep us all posted on the happenings.

[snathan]

Again, Thanks a bunch Desi3933. My case is pretty much same as 'Scenario 1' in this Murthy document.

Desi3933 cleared the 99% of the cloud surrounded this issue by pointing to murthy.com (I maintained valid status with 'Employer #2' and this doc says I am good to go). Thank you very much Desi3933.


Apologize for extending the topic....but one of the 'still open' question is what if the Second Employer H1B is 'NEW' and what if it is 'Transfer'.
Murthy document does not say about the Company B H1B is NEW or TRANSFERRED.

If New H1B and Transferred H1B are same....then problem is solved.

Many of you here said both are same. I assume so too. But, we haven't proved Gapala is wrong yet (no hard feelings gapala. it is not my intention to hurt you). if 'NEW and TRANSFERRED' are different, Murthy should have mentioned in her Document, but she did not do that. So, can we safely assume, that 'NEW and TRANSFERRED' are same.

Thank you everyone who responding to my post.

Come on man....there is nothing called transfer. Every H1B is new. Only thing is its not counted against the cap when you change the employer.

[nrakkati]

Come on man....there is nothing called transfer. Every H1B is new. Only thing is its not counted against the cap when you change the employer.

Thanks snathan, for the response.

I too think every H1B is NEW. Why I am stressing on this point is, since I am in the 'situation' now, I feel little pinch and I was looking for any pointers that closes the door for this doubt. Just like the one desi3933 pointed out.

I am confident and feel pretty safe now. Thanks to Desi3933

Like many suggested here, I go with the attorney and have him/her answer the RFE.

I will update the thread as I find more to help this community with similar situation.

[gc28262]

.................................................. ........................
Apologize for extending the topic....but one of the 'still open' question is what if the Second Employer H1B is 'NEW' and what if it is 'Transfer'.
Murthy document does not say about the Company B H1B is NEW or TRANSFERRED.

If New H1B and Transferred H1B are same....then problem is solved.

Many of you here said both are same. I assume so too. But, we haven't proved Gapala is wrong yet (no hard feelings gapala. it is not my intention to hurt you). if 'NEW and TRANSFERRED' are different, Murthy should have mentioned in her Document, but she did not do that. So, can we safely assume, that 'NEW and TRANSFERRED' are same.

Thank you everyone who responding to my post.
If you want to hear from Murthy, see the link I posted earlier
Here it is

http://www.murthy.com/news/n_immrum.html

Relevant part from the link
"
Each H1B Employer Must File a New H1B Petition
.................................................. ............................................... When an H1B employee wants to change employers in the United States, the prospective new employer must first file a new H1B petition. Although many people refer to this as an H1B "transfer," there is no separate transfer procedure under law. Each H1B is employer-specific and requires the filing of a new H1B petition and an approval from the USCIS to work for the new H1B employer.
.................................................. .................................................. ....
"

[gapala]

There you go. Here is the link for the opinion letter
www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf
(http://immigrationvoice.org/forum/www.murthaimmigration.com/wp-content/uploads/2007/08/sheela_murthy.pdf)
Read it, Understand it and then please let me know if you still think that OP was in "unauthorized work", as this is what you have written before

I read it, not to redicule you but, look who is quoting murthy! :D :D

I don't agree with Murthy's interpretation. Here is my take on this -

US citizen of Indian origin[/COLOR] Its convenient han!

I do not want to go back and forth with you guys. I rest it and thanks for posting the link.

[nrakkati]

If you want to hear from Murthy, see the link I posted earlier
Here it is

http://www.murthy.com/news/n_immrum.html

Relevant part from the link
"
Each H1B Employer Must File a New H1B Petition
.................................................. ............................................... When an H1B employee wants to change employers in the United States, the prospective new employer must first file a new H1B petition. Although many people refer to this as an H1B "transfer," there is no separate transfer procedure under law. Each H1B is employer-specific and requires the filing of a new H1B petition and an approval from the USCIS to work for the new H1B employer.
.................................................. .................................................. ....
"

Thank you very much, gc28262.

That's exactly what I was looking for.

IV community has answered all my questions.

Special thanks to desi3933 and gc28262

I will update the thread once I submit the RFE.

Good Luck for All of YOU with your GC process.

[desi3933]

I read it, not to redicule you but, look who is quoting murthy! :D :D

Its convenient han!

I do not want to go back and forth with you guys. I rest it and thanks for posting the link.

There is a reason, I said read it and understand it. I don't think you have understood it.

I was referring to the opinion letter by Efren Hernandez, Chief (at that time), Business and Trade Services Branch. How does it matter if it was response to a query by lawyer.

Just because I don't agree with a lawyer on a particular issue, it does not mean that I have to disagree with all other issues as well. Do you think that attorney is correct all the time?

The bottom line is that opinion letter is written by a USCIS officer and that I was referring it. And most important of all, you were proven wrong, again. That is the real reason of you being upset.

Have a good day!


_______________________
Not a legal advice.
US citizen of Indian origin

[desi3933]

A
.....
If New H1B and Transferred H1B are same....then problem is solved.
....

You are right. .. New H1B and Transferred H1B are same

I also mentioned this in a past post of this thread (Page 5) as well

Typically, H-1B transfer means new H-1B petition for the beneficiary who is/was in H-1B status and is not subject to H-1 cap.

[desi3933]

Desi,
Time and again I have noticed that you backed your suggestions with relevant documents. I for one, commend you for the work you do on this forum. I was almost thinking this case might set a precedent for dormant H1B, but apparently not. The other information that you provided on the other forum that was completely new to me was, when you pulled out the document regarding GC for the child of permanent resident born abroad.

Thank you for good work.

Thanks so much for your kind words of appreciation.

I believe in sharing my limited knowledge of immigration laws and cases with fellow legal immigrants.


________________________
US citizen of Indian origin

[kolantiIV]

I think OP posted on Murthy fourm too. This is reply from a user at that forum.




http://murthyforum.atinfopop.com/4/OpenTopic?a=tpc&s=1024039761&f=1474093861&m=1321092881&r=5131043881#5131043881

OP, Desi3933?

[desi3933]

OP, Desi3933?

I-797 validity dates determine employment authorization.

Belle is incorrect, IMHO.


_______________________
Not a legal advice.
US citizen of Indian origin

[krishnam70]

As long as you have had a valid h1b peition approved for employer 1 and employer 2 while you worked for them you are FINE.

According to my lawyer there is nuthing like a h1b transfer. When someone decides to move to a new sponsor that new sponsor files for a h1b via the petition but nuthing gets transfered, they need to refer to old h1b just to prove thatyou are legal and have been maintaining legal status.

in your case Employer X did so but you never joined that employer so you are fine. USCIS can get back to that emplyer if they have not cancelled your h1b as they are liable to pay you by law.

For real as you had an approved petition (latest but not the greatest) from Employer X but did not join them you are fine as long as you were still holding a valid petition with Emp # 2. You should respond back to RFE stating that you were maintaining stauts via emp#2 and were offered a job by EmpX which you never accepted. As a proof you should sen copies of pay stub for enitre period and w-2 + peition and visa copies.

Hope this helps!:)

BTW there is nothing like H1 Transfer as I learned, when you file your H1 with another employer its equivalent to a new H1 only thing is it will not count in the current year's quota.

You are good if you maintained valid status and have the documents to prove, not working for employer X with an approved petition is ok if you maintained your valid status with your current employer.

Get a good letter drafted by your attorney and it should be straightforward. Your attorney should have told you that.

- cheers
kris

[gapala]

There is a reason, I said read it and understand it. I don't think you have understood it.

The bottom line is that opinion letter is written by a USCIS officer and that I was referring it. And most important of all, you were proven wrong, again. That is the real reason of you being upset.

_______________________
Not a legal advice.
US citizen of Indian origin

I truely hope you are correct and op is out of the woods, but will wait until we get verdict from CIS. nrakkati please post when you hear from CIS on this situation. Good luck with your GC.

[nrakkati]

I-797 validity dates determine employment authorization.

Belle is incorrect, IMHO.


_______________________
Not a legal advice.
US citizen of Indian origin

Update...

I am going with attorney. Attorney has just asked me to send all H1Bs, EADs, W2s and Tax Returns. Attorney is working on it.

Thank you

[nrakkati]

I think OP posted on Murthy fourm too. This is reply from a user at that forum.




http://murthyforum.atinfopop.com/4/OpenTopic?a=tpc&s=1024039761&f=1474093861&m=1321092881&r=5131043881#5131043881

If COS means -'change of status', mine is not change of status.
It is H1 to H1 (I believe that means it is not change of status) .

Thank you

[gcisadawg]

I do not think this is the case with OP, given that I quote, Employer X offiered me a job and sponsored my H1B and got it approved too". I guess this is a new H1B filing rather than a transfer from Employer #2 to Employer X. if this is a transfer, OP is in trouble as you suggested and the employment from transfer approval date till now will be considered "unauthorized work".

could you confirm whether Employer X thing is a transfer or fresh filing?

There is no such thing called H1B Transfer. You either file an Extension with your existing employer or a New H1B whenever you change an employer. New H1B may or may not come under quota.

One can have multiple H1B's. In this case, he had multiple H1B for several months butb used only one them. So, he was in H1B status all along with a employer who filed his H1B petition.

[nrakkati]

you find these replies from Desi3933 and other people useful please consider contributing to IV. Good Luck.

I just did and will do again later!
Thanks

[nrakkati]

I truely hope you are correct and op is out of the woods, but will wait until we get verdict from CIS. nrakkati please post when you hear from CIS on this situation. Good luck with your GC.

Thank you, gapala. I will come back and update.

I did not ask attorney too many questions as he is busy filing the case. But did not say anything like I am in trouble. Hopefully everything turns out good.

Good Luck with your GC too.

Thanks.

[nrakkati]

Haven't got anything from USCIS yet. Online status show 'Received RFE Response'
Thanks

[number30]

This is a different employer, so I am assuming it is new H1. If I remember correctly from my past research, H1 is always NEW when you file it with different employer, but I am not 100% sure....

thanks.
It is just semantics

It is New H1 with Transfer of I-94. It has been shortened into H1 Transfer to separate it from 65000 per year Quota.
If someone gets the H1 approval without I-94 they call it H1 is approved but transfer denied. They will have go out of the country and come back to get I-94.

When someone doing the Transfer they put it as new H1. Then they will say whether it is coming from yearly quota or not.