Advisory Letter from INS on Filing for H-1B Change of Employer

September 27, 1999

Thomas W. Simmons
Branch Chief
Business and Services Trade Branch
425 1 Street NW
Washington, D.C. 20536

Dear Mr. Simmons:

I would like to pose a simple question to which I have received different answers over the years. The best way to ask the question is to give you a hypothetical.

Alien is employed with company "A". She is the beneficiary of an H-1B visa petition filed by company "A" which is valid until December 31, 2000. She also has a valid H-1B visa stamp valid until December 31, 2000. She gets a job offer with company "B" and company "B" files a "change of employer" H-1B petition requesting an extension of stay on July 25, 1999. While the new petition is pending, the alien travels outside the U.S., reenters using her current visa on August 18, 1999, and resumes employment with company "A". She is issued a new I-94 valid until December 31, 2000. On September 15, 1999, the INS approves the petition and extension of stay filed by company "B" and the petition is valid until December 27, 2001.

The alien joins company "B " and the question is which I-94 is controlling? Is it the I-94 issued to her on last trip into the US which is valid until December 31, 2000 or is it the new I-94 issued by the INS when the petition and extension of stay filed by company "B " was approved by the INS and is valid until December 27, 2001.

Thank you for your time and attention to this matter.

Sincerely

Norman C. Plotkin
Attorney at Law
NCP/dkw

October 20, 1999

Norman C. Plotkin, Esq.
JACKSON & HERTOGS
170 Columbus Avenue, Suite 400
San Francisco, CA 94133

Dear Mr. Plotkin:

This refers to your letter of September 27 in which you pose a question concerning the H-1B nonimmigrant classification.

In the scenario described in your letter an H- I B alien is employed by "Company A" valid until December 31,2000. "Company B" files a subsequent H-1B petition on behalf of the alien. While Company B's petition is pending, the alien departs the United States and is issued another I-94 valid until December 31, 2000 consistent with the initial petition filed by Company A. After the alien's admission to the United States, the INS approves the petition filed by Company B with a validity date until December 27, 2001. You question which validity date is controlling, the validity date of the first petition filed by Company A or the validity date of the petition filed by Company B.

Based on the information furnished in your letter, the alien may remain in the United States until December 27, 2001 as an H-1B nonimmigrant. The alien's departure and admission to the United States has no bearing on the validity period of the petition filed by Company B.

I trust this response satisfactorily addresses your concerns.

Sincerely,

Thomas W. Simmons
Branch Chief
Business and Trade Services