Below are questions I have on the H-1B Amendment and H-1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H-1B Amendment is in light of the new H-1B regulation that has been mandated by USCIS when there is a significant change in the Job Location of the beneficiary from the address mentioned in the initial Petition from the employer which was approved initially.
1. Does the USCIS Last action rule apply in case of the below 2 being applied almost at the same time for the same beneficiary?
a) H-1B Amendment with Current Employer
b) H-1B Transfer to New employer while H1B Amendment is pending with Current Employer.
2. If the answer for the above is 'Yes', then incase the H-1B Amendment Approval comes after the H-1B Transfer would the H-1B transfer to the new employer that was approved earlier be automatically nullified?
3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H-1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H-1B amendment to dictate the latest H-1B for a given employer? (I believe we can request USCIS to withdraw/cancel the Amendment but is this something that the new employer/employee can do or only the existing employer who was filed for H-1B amendment has the authority to request any cancellation/withdrawal of the H-1B amendment?)
4. Also does the current suspension of H-1B premium processing apply even for the H-1B transfers (with a new extension for 3 Years) or is it only for new H-1B extensions of Petitions from the current employer?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
Filing for two benefits for eg: H-4 and F-2 or F-1 or even H-1 becomes problamatic when there is a change of status involved. So if you are applying for two different statuses at the same time that becomes problematic. If on the other hand your status is H-1 - the same status one is in the amendment mode, the other one is in the extension mode I don’t see it as a problem. Whether your amendment gets done first or your extension gets done later or the other way round I do not see how that makes a difference as long as your statuses is being maintained. I do not see any problem with having simultaneous filing of H-1 amendment and extension. There is no question of the application of the last action rule really doesn’t matter. If the amendment comes before the extension or transfer comes before the extension it is your choice you can stick with the same employer and join the new employer later when the approval comes. Last action rule has little bearing on this.
Regarding question four what the government has said is we will not do premium processing where you request an extension whether the extension is with the same employer or with a new employer. So extension cases will not be processed in premium processing until the government says otherwise.