INS on H-1B Transfers from a Parent to Subsidiary and Vice Versa

In a recent letter from the INS to an AILA attorney, INS through John W. Brown, Acting Branch Chief, Business & Trade Services Branch Benefits Division, addressed the issue of the requirement of whether to file a new or amended H1B Petition under certain specific circumstances.

When a company transfers employees to a subsidiary company (and the subsidiary had previously filed a new H-1B petition), but subsequently wishes to transfer the employees back to the parent corporation, a new H1B is not required to be filed with the INS.

The reasoning by the INS for its conclusion that a new Petition was not required in that case was because:

a. The H-1B petition continued to remains valid since the validity dates had not yet expired, and

b. The H1B Petition had not been revoked by the INS.

Since the H1B petitions filed by the parent company are still considered valid by the INS, the INS concluded that the H1B employees may be transferred to the parent company without the filing of a new or amended H1B petition.

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