H1B Transfer After October 1st

H-1B workers are allowed to accept employment from a different employer after having their H-1B petition approved, and the process of changing employers is not as troublesome as one might imagine.

Although we called it a transfer, it is not really a transfer because the new employer is filing an entirely new H1B application. The advantage is this new application does not count against the cap.

It is important to mention that in order to transfer from one employer to another, the worker has to be under a valid H-1B status and be working for the first employer who sponsored the visa petition in the first place.

How to process a transfer after October 1st?

The key step to filing for a transfer petition is having a job offer in place since the H-1B visa requires for sponsoring employer to file on behalf of the worker.

The worker is also required to prove that they had been working for the previous employer, usually by providing copies of pay stubs, letters of employment, or other relevant documents that can demonstrate that the employment started on October, 1st.

The new employer has to file the transfer petition with the USCIS and the new position must meet the H-1B requirements for a specialty occupation.

The transfer process has the following steps:

The new employer files a new Labor Condition Application with the Department of Labor. The LCA must demonstrate that the jobs meet the requirements for an H-1B visa, for specialty occupation and wage;
With a certified LCA, the employer files a transfer petition, Form I-129 with USCIS;
After filing an I-129 petition, USCIS sends a receipt number to the new employer and to the employee.
With the receipt number, the H-1B holder can immediately start working for the new employer.

What supporting documents do I need to present?

Some supporting documents are required for filing the petition with the USCIS. Support documents are listed as:

Copy of social security card
Copy of tax returns (if applicable)
State license for your profession (if applicable)
Update resume
U.S. visa, and, in some cases, Forms I-797 and I-94
Employee resume
Pay stubs to prove employment status. Usually, 2 to 3 pay stubs are enough.
University degree and transcript
Academic evaluation

Work together with an immigration attorney to avoid receiving a Request for Evidence when applying for a visa transfer.

What will be the start date for the new employer?

As mentioned, the employee does not need to wait for USCIS’s final decision on the petition before transferring to the new employer, although it is widely recommended to do so.

There is no time limit for the employee to move to the new job after having his petition approved. The start date for the new employer can happen at any time between petitioning for transfer, upon receiving Form I-797c, and the expiration of the H1b status.

But, since having an approved LCA does not necessarily mean that USCIS will approve the H1B visa transfer, if USCIS issues a denial, the worker is at risk of being out of status.

Do I need permission from my current employer to file a transfer petition?

An H 1B worker wanting to change employers does not need permission from the current employer to file a transfer petition.

The new employer will petition for the transfer and the current employer will not be notified by any government agency.

It is up to the beneficiary to decide whether they want to discuss the transfer with colleagues or the employer.

How long does a transfer process take?

The H-1B visa transfer process usually takes up to four months if the petitioner opts for regular processing.

By choosing to go with premium processing, the transfer process is expedited and USCIS must issue a decision within 15 calendar days. However, premium processing does not guarantee that the petition is approved.

How many times can I transfer my H-1B visa?

There is no limit on the number of times an H-1B holder can transfer their visa. But, transferring an H-1B does not grant an extension, therefore, the expiration of the H-1B visa is a limit to keep an eye on.

The new employer can apply for a visa extension if necessary.

Can I change my mind about the transfer?

Even after having a petition approved, an employee can opt not to transfer to a new job and remain with the current employer, without any impact on their status.

Is H1B transfers subject to the annual cap?

An H-1B transfer is not affected by the annual cap for H-1B visas.

Since the employee is already under an H 1b status, the petition for transfer will not enter the H-1B visa lottery.

What is H-1B bridge petitioning?

H 1B bridge petitioning means submitting more than one H-1B petition through multiple employers. In essence, it means having multiple petitions pending at the same time.

However, to be approved every H 1B petition must separately meet the requirements for H 1B classification and for an extension of stay.

If the H-1B visa status expires while the petitions are pending, the denial of any filing in the thread of petitions filings undercuts the “bridge”, meaning that any petition to extend or change status that was filed after the expiration of the H-1B status that is denied will result in the denial of all successive requests to extend or change status.

Revoked H-1B

If for any reason the H-1B was revoked in the same fiscal year where the H-1B beneficiary was counted, there are two scenarios to consider:

The H-1B worker never entered the US for work

According to the regulations, when an approved petition is not used because the beneficiary did not apply for admission to the United States, the petition will be revoked and USCIS will consider as unused during the appropriate fiscal year.

In this case, if the employer wishes to enter the US under an H-1B status, a new H-1B cap-subject petition under the H-1B lottery program is needed.

The H-1B worker entered the US for work

If the H-1B visa holder worked for the petitioning employer and then resigned from the H-1B employment within the same fiscal year, the H-1B worker will be H-1B cap-exempt if the new employer files the amendment petition to the USCIS before the resignation is submitted to the first employer.

H-1B transfer before October, 1st

Technically speaking, transferring to a new employer before starting working at the sponsoring employer is not possible.

To be able to transfer to a new company, a valid status is necessary and it is only acquired after the H1b employee starts working, on October, 1st.

Nonetheless, if the H-1B sponsoring employer is not cap-exempt, then the new employer can just submit a new petition Form I-129 for the employee, without worrying about the annual quota, since he/she has already been selected in the lottery.

What is a cap-gap?

Some students under an F-1 status are eligible for a cap-gap when their F-1 status will expire while waiting for their H-1B petition to be approved.

A Cap-Gap extension enables F-1 student’s status to bridge the gap between the end of F-1 OPT or OPT STEM work authorization and the start of H-1B status, allowing the student to stay in the US during the “gap.”

We can help you transfer your H-1B visa?

If you feel like you need more guidance through your visa transfer, seek out counsel from the Herman Legal Group, a U.S. immigration law firm with over 25 years of experience in representing individuals, families, and companies in all aspects of immigration law, in all 50 states and around the world.

Schedule a personal consultation with Attorney Richard Herman by calling 1-800-808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.

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