QUESTION

Could you please help clarify if the company would still be able to file a LCA and my H-1B transfer/change of employer (COE) petition in either case?

Asked on Apr 11th, 2016 on Immigration - Illinois
More details to this question:
I interviewed with a company who is interested in hiring me on an H-1B, however they spoke with an immigration attorney who told them that they may have reached the 10% maximum limit on the number of existing H-1B employees to the total workforce employed by the company. Based on what I have read online, I believe that there is no limit to the number of H-1B employees a company can hire and the ratio is only used to determine if an employer is considered as 'H-1B dependent' or not. An H-1B dependent employer would still be able to hire H-1B employees with additional documentation and/or fees required for 'Non-exempt H-1B Non-immigrants' when filing a LCA or H-1B petition. I am considered as an 'Exempt H-1B Non-immigrant' since I have a U.S. Master's degree.
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1 ANSWER

I understand that you want definitive answers but this matter is best taken up with the potential employer and its immigration attorney. Regardless of whether they can petition for you, the company must actually do so. You cannot unilaterally transfer your H-1B. The potential employer would need to be comfortable moving forward.
Answered on Apr 12th, 2016 at 5:17 AM

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