We are often asked this question: What happens if the beneficiary was unemployed for a period of time before a new employer files an H-1B transfer petition?
Our experience is that the USCIS uses its discretion and approves the transfer with change of status when the unemployment period is comparatively short. But it if it is more than a few weeks, then the situation could be a little more complex. The case could still get approved, but with consular processing, meaning the beneficiary should depart the US and get the visa stamp to be able to work for the new employer. In such cases, we advise the employer not to put the new alien on the payroll until the H1B petition outcome is known. We also recommend premium processing for such petitions.
Then what is the maximum period (days, weeks or months) a person can remain unemployed before an H1B transfer is filed? The safest answer is "zero". But we have seen a number of cases approved when the gap in employment was short. Further, as said above, the "transfer" could be denied though H1B classification is approved, i.e., the beneficiary would have to travel out of the US, get the new visa stamped, and return to the US to be able to commence employment with the new employer.
After transferring the H-1B to a new employer, should the beneficiary leave the US and obtain a new H-1B stamp on his/her passport before starting the new job? The answer is that if the H1B is granted with extension/change of status, i.e., with an I-94 with new validity dates, there is no need to get the visa stamped.
A related question then is whether a person can travel while the H-1B transfer petition is pending. We advise against such travel. In the past, we had instances where USCIS came back asking to prove that the beneficiary was still in the US when the H1B transfer was adjudicated.
Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.
Copyright: The Law Offices of Morley J. Nair, Inc.
About the Author
Morley J. Nair is the Founder of The Law Offices of Morley J. Nair, located in Philadelphia, PA, practicing Immigration Law in all the 50 states. The firm has processed thousands of H-1Bs and hundreds of employment-based immigrant visas. The law firm websites are http://www.visaworks.com and http://www.h1bplanet.com.