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If I can to the U.S. on a L1B visa can I apply for a H1B transfer

Asked over 3 years ago - Portland, OR

I came to US in 2004 on an L1B visa Through Company A. I joined Company B (they processed my H1B in 2007) after they filed for a change of Status in February. So, my passport still reflects an L1B Stamp while my I-94 is based on an H1B.
I recently was offered a job in Company C, who just applied for a H1B Transfer. I have to travel to India now and that means I will have to get my visa stamped.
However, since I have to be gone for a month, Company C is asking me to have my joining date as soon as I return back and they will courier me all the necessary documents (approved h1b transfer). Is this alright?
Or should I join before I leave to India? I already tendered my resignation to company B.

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Attorney answers (1)

Robert Philip Webber

Reputation Level 12

Answered over 3 years ago. Immigration Attorney in Minneapolis, MN.

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If the company C H-1B petition approval notice (Form I-797) indicated a CHANGE OF STATUS, and you were given a new I-94 card, then ideally you would join company C and get 1 pay stub (or more) from company C prior to leaving the US.

If the company C H-1B petition approval notice (Form I-797) indicated CONSULAR NOTIFICATION, that is, it was a Form I-797B (check bottom right corner), then there would be no problem to leave the US prior to joining company C.

Note that if you did get an approval notice with I-94 card (I-797A), as mentioned in the first paragraph, it is not absolutely required that you join the employer prior to leaving the US, but it would be better if possible.

In the end, the key to having a successful H-1B visa interview at a US consulate in India is documenting that all your time in the US was in a valid visa status (through approvals and pay stubs and W-2s), and documenting that your new employer (company C) is a viable company with a specific job opportunity for you when you return. You will want to over-document your situation as yours is the kind of situation where the US consulate may delay approving the visa if company C is a small consulting firm.

In the end, the best source for advice on this is the attorney who handled the company C H-1B petition.

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