1. Laid off H-1B employee, where the employer did not withdraw the approved H-1B, may be able to have a successful H-1B transfer
A reader asks:
This year is my last year of OPT, I finally won the H-1B lottery, but was laid off. My question is if I find a new job now, is there any way I can transfer this H-1B? I understand that the best H1B situation is after 10/01, I need to take two paychecks before leaving, but now I was laid off. What to do?
Arthur Lee answers:
Technically, since a cap H-1B petition is only valid starting on 10/01, you are not in valid H-1B status yet. By rule, you are not eligible for an H-1B transfer. This is USCIS’ official position. However, we have heard of a successful H-1B transfer where the party did it before his 60 day grace period was up, and his employer who laid him off did not withdraw the H-1B approval prior to 10/01. Other than that, your best options are probably to return to school for another year of study, or find another nonimmigrant employment pathway with another company willing and able to hire you such as but not limited to O-1, L-1, or E-1/E-2/E-3 if you qualify.
2. When the H-1B was not approved, the H-1B lottery spot could not be preserved
A reader asks:
In 2016, I won the H-1B lottery but was requested RFE for additional materials. Later, at the end of June, the company suddenly terminated my work contract and cancelled my H-1B application. At the beginning of July, I returned to China immediately. Now I have just returned to the United States after the epidemic. Can my H-1B be saved? Does it mean that I don’t need to draw the lottery again but only find a company that is willing to sponsor me?
Arthur Lee answers:
Unfortunately, as your H-1B was not approved, you have never been in H-1B status. As such, your H-1B lottery spot has not been preserved. You cannot transfer an H-1B status which was not initially approved. Therefore, you will be subject to the lottery unless you apply for an organization that is cap exempt such as a higher educational institution, nonprofit organization affiliated with an institute of higher education, nonprofit research organization, or government research organization.