Legal Question in Immigration Law in New York

Re: Re: Cancel H-1B application

Thanks William for your prompt reply.

Just to clarify, can I do anything before the H-1 approval?

I have a Master's degree from US university, and the quota is still open for such candidates.

Is it possible for me to withdraw the current application and apply for a fresh one through the new company?

Thanks.

Original Question: Hi, I was recently hired by a company 'A' and they filed for my H-1, last week and I have not started working for them yet. I got a much better offer from a different company 'B' today. Is it possible for me to withdraw my H-1 application from company 'A' and file for fresh H-1 through company 'B'. Or should I wait for the H-1 to be issued and then get it transferred? Can the H-1 application cancellation be done by me or do I have to go through company 'A'. Would it affect my future application approval. None of the two companies know about my current status. I currently am on my OPT and have to make a quick decision, because the quota may exhaust anytime (I qualify for Master;s degree quota).


Asked on 9/02/05, 10:17 am

1 Answer from Attorneys
William Frenkel Frenkel Sukhman LLP

Re: Re: Re: Cancel H-1B application

Again, you as employee cannot either withdraw petitions or file new ones -- this is up to your employers.

Having said that, it is generally in the employee's interest to obtain the H1-B status through the most reliable and expedient employer route (think 2-week premium processing) because then any other U.S. employer can put such employee on the payroll immediately. However, if you are not interested in working for the original employer, there may be other considerations that mitigate toward informing that employer that you are no longer available and having the new employer file a petition on your behalf (if it is still timely). Your legal obligations to the original employer (is there a contract, an offer letter you signed ?), your reputation in the industry (what if the word spreads ?) and the strength of the new employer's H1-B petition on your behalf (what if it is denied ?) are some of these aspects to take into account. So you have to perform a bit of "what if" analysis on each of these. Good luck.

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Answered on 9/02/05, 12:02 pm


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