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Consular petition - H1B transferable without having come into effect?

Hoboken, NJ |

I'm currently on my F-1 STEM Extension which is valid till Nov-2014. My Employer has sponsored my H1 which has been approved in 2013. Although, since I wasn't in the country when they applied, it is a consular H1 petition without Change of Status Application.

Can my new prospective employer apply for a transfer of my H1 even though it still hasn't been activated? (I don't intend to travel outside USA in the coming few months, thus will continue working on F-1)

Looking forward to any advice/suggestions.
Concerned F-1/H-1 individual

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Attorney answers 7

Best Answer

It all depends how to determine your status after Oct. 1, 2013. If you do not go outside the country to apply for H1B visa stamp, the cap-subject H1B may not become valid. You could travel outside the U.S. in order to activate the H1B, return to the U.S., then file for H1B change of employer to port to the 2nd employer. In the alternative, another approach is to apply for change of status based upon your first H1B approval. There will be additional costs but may be worthwhile if you detest meeting consular officers overseas. Given we are in the middle of Sept, once that is approved, it will be after Oct. 1st. Then file for change of employer to your 2nd H-1B. There are lots of technical details that is better handled by a competent attorney.

Sincerely yours,
Oliver Huiyue Qiu, Esq.

(646) 820-7658 Oliver Huiyue Qiu is a co-chairman of American Immigration Lawyer Association's New York City chapter Federal Practice Committee. This response should not be deemed as the creation of attorney/client relationship. Legal advice should be sought with a competent immigration attorney.


Ask your prospective EMPLOYER'S immigration lawyer what he or she thinks about this.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


Agree with previous answer. Talk to employer's attorney.

The above is intended as general information only and cannot be relied upon as a legal advice. Laws change constantly and vary from state to state. The legal principals discussed may differ substantially from your personal situation. Therefore, You should consult an attorney about your particular situation. Law Offices of Tsirina Goroshit at 275 Madison Avenue, 4th Floor New York, NY 10016 Tel (212)880-1538



(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.



NYC EXPERIENCED IMMIGRATION ATTORNEYS; email:; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.


No, not possible.

The answer provided is general in nature and should not be construed as legal advice as not all facts are know by the attorney, nor does the answering of this question create an attorney client relationship.



John Lassen 1-877-252-4630