Many H-1B visa holders go through the H-1B visa transfer process when they wish to switch employers. And while you are going through the H-1B visa approval process with the current employer, the other may provide you with a more secure offer or a more appealing one.
This is just one possible reason you may want to change the current employer and have other petitioning employer.
What To Do If You Want to Go From Employer A to Employer B?
The common questions that arise when you want to work for a new company is if the H-1B visa stamp in your passport is valid, since you got it after your current employer filed the petition on your behalf.
Do you need to get a new visa stamp if you now want to work with the different employer, or renew the H-1B visa stamp? Or should you get the H-1B visa transfer before or after the visa stamping?
There is a difference if you get an H-1B visa transfer before or after visa stamping. This is why we talk about these processes in this article.
Nevertheless, we highly advise you to talk to an immigration attorney about your case to make the right decision.
Short Overview of H1B Visa
The H1B visa is an employment-based US visa for temporary high-skilled workers. A US employer must make a job offer for this visa and apply for your H1B visa petition with the U.S. Immigration Department. The approved petition serves as a work permit allowing you to obtain a visa stamp and work for a U.S. company.
Eligibility Requirements
The H1B visa is issued for specialty occupation positions. These job positions are reserved for those with theoretical and practical application of a body of specialized knowledge requiring the H1B visa petitioner to have at least a bachelor’s degree or its equivalent.
The U.S. Citizenship and Immigration Services limits how many H1-B visas are issued each year. The cap is placed at 65,000 per year, with an additional 20 000 H1-B visas for qualified people who have completed a Masters’s degree or higher in the U.S.
H1B Visa Transfer
H1B visa holders can transfer their visas and start to work for a new employer when their new employer submits an H-1B transfer petition with the USCIS.
The applicant doesn’t have to wait until the transfer is issued.
The H1B transfer bill approved in the Senate and House (bill S.2045) rules that valid H-1B visa holders can change jobs upon the filing of a new petition by the new employer as long as they:
- Are in lawful status at the time of filing
- Used employment authorization properly and hasn’t engaged in any unauthorized employment since their last lawful admission.
This transfer allows individuals who have filed for adjustment of status and whose cases have been pending for at least 180 days or more to change jobs or employers. Moreover, you can apply for an H1 transfer for multiple employers at the same time.
This change will not affect the validity of the I-140 or underlying labor certification, as long as the new job is in the same or a similar occupational classification to the job position in the original H1B visa petition and labor certification.
H1B Visa Portability
The great benefit of the H-1B visa is that you can transfer your status from employer A to the employer B.
In fact, it is not difficult, and with the American Competitiveness in the 21st Century Act (AC21), the transfer process is now much easier.
Following the H1B visa portability rules of the American Competitiveness Act, as an H1B visa holder, you may transfer the status to start to work with a new employer, provided that the new U.S. employer follows the procedures to file an H1B transfer visa application on your behalf.
H1B Visa Transfer Requirements
To transfer your visa, your new employer will need to file a new H-1B petition.
But, you need to meet the following requirements:
- Your stay in the U.S. was on legal ground
- The petition is considered non-frivolous- based on law or fact.
- You have never been engaged in unauthorized employment in the U.S. (USCIS investigates H-1B employers through the Fraud Detection and National Security)
- Your current employer has already approved your H1B visa status
What is H-1B Visa Stamping in Passport?
When you enter the U.S., you need to have an existing valid visa according to the purpose of your entry: for a visit, work, study, etc.
International high-skilled workers or international students who studied at the U.S. universities seek an H1B visa. Upon receiving the approval notice of their petition by USCIS, they get the H-1B visa stamp on their passport. It is a sticker or foil glued to your passport page when you go through the H-1B visa stamping process.
What is specific for the H-1B visa stamp is that it usually has annotation with the employer name, the one who sponsored your petition, and the case number below.
In other words, the employer named on the visa stamp is the same as the Employer Name listed on the I-797 H-1B approval notice.
Of course, there could be other visa annotations, such as “Clearance Received” or “Department Authorization.”
So, you can guess where the confusion may occur?
Of course, that’s the employer’s name on your visa stamp when you change your mind and want to work for another one. The H-1B stamp validity is the employer name and H-1B Case Number printed on your visa.
So, let’s see what your options are.
Do You Need New Visa Stamp after your H-1B Transfer?
Now, let’s break this confusion: The name of the employer who sponsored you and the one on the H-1B Visa stamp in your passport is not tied with the validity of the stamp.
Annotations on visas are only for guidance and do not dictate the validity of the visa.
In other words, your valid visa does not depend on the employer who sponsored your H-1B petition. Instead, the H-1B visa stamp on your passport remains valid for the entire duration of the validity as indicated on the stamp.
The H-1B visa stamped in your passport states the expiration date, which is the end date of the validity of your H-1B visa.
Also, if you find the letter “M” under entries on your visa stamp, it means that you’re allowed for multiple entries until the expiration date of the H-1B stamp.
You can use your valid H-1B visa for your travel in and outside the U.S. after the H-1B transfer with other supporting documents provided by the new employer, such as the approval notice, job offer letter, etc.
In other words: You will not need a new H-1B visa stamping in your passport after the H-1B visa transfer as long as the previous H-1B visa in your passport is valid.
Getting the H-1b Visa Transfer Before Stamping
If the old employer who initially sent the application is either unwilling or unable to complete the process or if you found a better opportunity with a different U.S. employer before entering the U.S., it may be necessary to go through an H-1B visa transfer before stamping.
After you go through the lottery selection and USCIS approves your H-1B visa petition, and the previous scenario happens, it is wise to be cautious when deciding to transfer your employment before entering the U.S. and before getting the visa stamped.
The best option to avoid any mistakes that can cost you your visa is to discuss this issue with your immigration attorney. Contact the Herman Legal Group by calling 1-216-696-6170, or by booking online.
I am outside the U.S.,What Should I do?
If you are in your home country and received approval for your petition, you first need to get it stamped on your passport and decide whether you want to file for the transfer before or after it.
Filing for a transfer means that you file a new H-1B petition, but this time you don’t have to go through the lottery again since you have already been counted in the annual visa cap.
Do I Have to Notify My Previous Employer About the Transfer?
There is a concern to be aware of: if the employer who submitted the approved petition finds out that you want to transfer your H-1B visa, they can withdraw your approved petition, and you may go through the lottery selection again.
USCIS, or any other government agency will not share information about you applied to transfer your petition with your previous employer, so it’s up to you whether you would want to share such information.
If you are worried about the potential withdrawal of your approved petition, book a consultation with one of our immigration attorneys who will advise you on the best steps to take.
When Your New Employer Should File H1B Transfer Petition?
So, according to the previous section, you can conclude that it is much safer to wait with the transfer until you have entered the U.S. than to get an H-1B transfer before stamping.
In this case, the petition of your previous employer cannot be withdrawn after your visa has been stamped. Then your new employer can file a new petition on your behalf, and when USCIS issues the I-797 Notice of Action Receipt form, you can finally transfer your employment.
H1B Transfer Required Documents
To file the H1B transfer petition you need to prepare the relevant documents :
- Financial documents: recent pay stubs (people often ask how many pay stubs you need to provide, but usually you need to attache pay stubs for up to three months)
- Copy of your previous approval of H1B visa with the current employer (the copy of I-797 or a receipt number)
- Copy of your passport (old and new passport if applicable)
- Copies of I-94 records.
- Copy of Social Security Card.
- Updated Resume
- Copy of your valid visa obtained with the first employer
- Copy of all your Diploma/Degrees
The H1B Transfer Processing Time
To change employers, your new employer needs to file transfer of your H1B visa with the USCIS. The administrative processing time for petition approval usually takes few weeks, but the entire process sometimes can take up to four months.
Still, in some cases, processing time can take longer, depending on the location of employment, where the appropriate USCIS visa processing service center is located, and the current processing times.
Can I Use Premium Processing?
Premium processing is a service provided by the USCIS that ensures the processing of your I-129 petition is done within 15 calendar days.
Yes, you can use premium processing when filing for the H-1B transfer. Moreover, you can use this option in both cases: when transferring your H-1B before or after stamping.
Because you are filing a new petition, you need to get approval from the USCIS, which means that you can be denied. Premium processing is just an optional service to speed up the process, and it does not affect your chances of approval, positively or negatively. USCIS guarantees to adjudicate your petition in 15 days, or you will get a refund of the premium processing fee and process your petition, as usual, taking about six months.
H1B Transfer Fees
The fees for an H1B transfer are nearly identical to H-1B filing fees:
- I-129: $460
- The ACWIA fee
- For less than 25 employees $750 or
- $1,500 for more than 25
- The fraud prevention and detection fee: $500
- Premium processing fee: $1,440
Filing a Request For Premium Processing for H1B Transfer
To request a premium processing for H1B transfer, your employer must complete and file a Form I-907, Request for Premium Processing Service. This form can be filed along with the Form I-129 petition.
If you are filing for an I-129 that has been submitted, you have to file Form I-907 to the same USCIS center where your submitted I-129 is currently pending with a copy of the Receipt of Notice for the pending Form I-129.
It may happen that USCIS has transferred the case to another service center, so if you received a transfer notice, you should file the I-907 there. However, you will need to include the transfer notice.
Transferring from Cap-Exempt to Cap-Subject Jobs
Prospective employers and foreign workers often try to use the cap-exempt to cap-subject transfer during the H1B transfer in order to enter the U.S. by using the cap-exempt employer and avoiding the lottery, and afterward transfer to the cap-subject employer.
The main issue here occurs when you need to file a new petition when you transfer your H-1B status. This makes an opportunity for USCIS to realize that your new employer is cap-subject and that you have not been counted against the cap. In this case, USCIS will decide to put your petition against the cap-subject petitions and enter the lottery.
It is important to file the cap-subject transfer petition on the first business day in April. Otherwise, the petition will be rejected, and you will not get a refund.
Probably, you will be prohibited from working for your cap-subject employer until the first business day in October.
So, to conclude: if you want to avoid the cap, you need to transfer your petition to the cap-exempt employer.
How an Immigration Attorney Can Help You?
When dealing with U.S. visas, it can be easy to sabotage your efforts by making a wrong decision during the filing or processing phase. Even a small interruption during H1B transfer can mean months of delay in processing, and it is essential to do things carefully and with legal guidance.
The Herman Legal Group has over 25 years of experience working with U.S. Citizenship and Immigration Services. Our friendly and professional team may want to help you go through H1B transfer process by analyzing your case, identifying the available options, and helping you decide the safest, most cost-effective, and quickest route to success.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170 or booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
