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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 96317
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I am in the US working on a H1B, and I am considering to change

Resolved Question:

I am in the US working on a H1B, and I am considering to change my employer.
The new employer is willing to sponsor my green card.
I am wondering, what the correct procedure would be for me to make the move. I presume the moment I tell my current employer that I want to change, he will cancel my H1B and me and my family will have to leave the country.
Now, I heard a H1B can be transferred. And the new employer will sponsor a green card.
My H1B is a specialist consultant.
The position for the green card will be different, than the one for the H1B. In the foreseeable future, I will be opening and managing a new entity for the new employer, and from then on I will be running the US operations.
I am wondering how to get started? Will the new employer first ask for a transfer of the H1B, specialist work force, and then once I am a full time employee, he will file for the green card, as we are setting up the new firm?
The change from the current to the new employer is very time sensitive. I mean, ideally, the day after I quit my current employment, I would start the new one.
What are the points we need to keep in mind and be careful about?
What is the procedure to follow?

Does the fact that my current employer has started the green card process influence the procedure to be followed? The green card process is still in the very beginning. After more than a year, only the initial filing with the Department of Labor has been completed (NOTICE OF FILING AN APPLICATION FOR PERMANENT EMPLOYMENT CERTIFICATION). ETA Form 9089 has not been filed yet.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.


You should file the H-1B transfer before you tell your current employer anything. As soon as USCIS gets the H-1B transfer application, you are safe to go work for the new employer. You do not have to wait for an approval. If you want to give you current employer a week or two notice, you can do that at that point, but make sure that USCIS has the H-1B transfer petition before you tell your employer. That way if your current employer terminates you, you can immediately work for the new employer.

As far as the green card process, that is separate from the H-1B process. Your current employer can terminate that process, but you can normally use the previous Priority Date when the new employer files anew.



Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!

Customer: replied 1 year ago.


Hello Guillermo. Thanks for your swift answer. Once more you show you are really on top of things.


Just to be sure I understand correctly, and a few additional question:


1.) filing H1B transfer, is as simple as sending a form (electronically) to USCIS? I only need a filing receipt, and I am good to start with the new employer? That really means, in the space of a day this should be achieved, right?


2.) Government Shutdown - will that have an effect on the filing of the transfer?


3.) Once filed for a H1B transfer, what are the chances of not being approved? You mentioned, once I have been terminated by the current employer, I am automatically good to work for the new one? But still pending the approval?


4.) Will the fact that I will be working as a specialist workforce H1B immigrant limit the ability to file for a green card as a senior manager of the new firm?


5.) Is it true, that as the position for the green card is a senior management position, the process will be shortened, and there is no need for the process with the Department of Labor, and for the recruitment process to see if a US person can be found to fill the position?


Thanks a lot.


Regards.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

1.) filing H1B transfer, is as simple as sending a form (electronically) to USCIS? I only need a filing receipt, and I am good to start with the new employer? That really means, in the space of a day this should be achieved, right?



No. It is like filing a whole new H-1B. You just mark transfer. But USCIS has to receive it for you to be able to start working for the new employer.


2.) Government Shutdown - will that have an effect on the filing of the transfer?



Honestly, I don't know as the last thing that I filed for a client with USCIS was about a week or two ago. It would probably affect processing, slow it down, but not receipt of the file.

3.) Once filed for a H1B transfer, what are the chances of not being approved? You mentioned, once I have been terminated by the current employer, I am automatically good to work for the new one? But still pending the approval?



I cannot tell you what your chances or are approval. You are automatically good to work for the new one as soon as USCIS receives the new H-1B transfer application. Obviously if you are eventually denied, you are in trouble. You would have to appeal or leave the U.S. and apply from outside of the U.S. If you appeal, you can continue to stay in the U.S. I don't think you would be denied as long as you and the company meet all the requirements.


4.) Will the fact that I will be working as a specialist workforce H1B immigrant limit the ability to file for a green card as a senior manager of the new firm?



As long as you qualify for the position, and you actually then work in that position when the Residency is approved, it should not be a problem.

5.) Is it true, that as the position for the green card is a senior management position, the process will be shortened, and there is no need for the process with the Department of Labor, and for the recruitment process to see if a US person can be found to fill the position?

 

 

No. That is not true. All EB-2 categories need a Labor Certification except the National Interest Waiver. If you are talking about EB-1, you have to have worked for 1 year out of the last 3 years for the company outside of the U.S. that is related to the company inside of the U.S. That's just one of the requirements, of course.

 

 

Please let me know if you have additional questions and please do not forget to rate my service to you positively (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Did you reply? If you did and you do not see your reply above, it is because we have been having technical difficulties. Please repost your reply and to make sure it went through, you should be able to read it on the thread, not get a mostly blank screen after hitting the reply button. I believe I may be able to help you. Sorry for the inconvenience. Thank you.
Customer: replied 1 year ago.


Yes, indeed I did...the reply must have vanished...


 


...I will try again:


 


I was wondering whether there is another alternative than transferring the H1B and the applying for the green card? Could the new employer file for a green card whilst I continue working for the new employer? Or could he file for a different visa type, rather than transferring the H1B? The new employer is a foreign company with more than 20 years in the market and more than 100 employees in Europe. They have established a presence in the US 2 years ago and have now some 12 employees.


 

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Sorry about the technical difficulties. One thing you have to keep in mind is that the worker visas in the U.S. are not meant to help foreign labor. They are meant to help the U.S. find workers when U.S. workers are not available. With high unemployment in the U.S. and many U.S. workers looking for jobs and few jobs available, I think you can start to see when it becomes risky to start making changes to one's status and giving USCIS opportunities to get you off of that status and send you home to free up your job for a U.S. worker. So be careful.


As to your question, the way that you could work for your new employer without needing an H-1B to cover you would be for the new employer to be able to file BOTH the I-140 and I-485 together AND you get a work permit and then you can go work for that new employer. Again, because of the economy the way it is, it is always better to have the H-1B status as a backup. Also, because you are probably not in a category where you can file both the I-140 and I-485 together, you will need that H-1B. I am truly sorry.


Please do not forget to rate me positively. As I do not receive a salary, it is the only way that I get credit for my service to you. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 96317
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq.
Attorney At Law
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10+ years of experience in various aspects of U.S. Immigration Law.