The H-1B visa is a U.S. nonimmigrant visa intended for people who have specialty occupation and letting U.S. companies hire foreign workers for that positions.
This means that foreign workers, usually international students in the U.S., have completed advanced education degrees or have extensive training. This is the most popular type of H-1 visa allowing foreign employers to temporarily work in the United States.
Unlike some other visas, employers are those who initiate the process of getting an H-1B visa. This means that you, as a beneficiary, have to find a job offer and the U.S. company that will agree to sponsor you in the process.
However, once you are in the U.S. and working for one employer, you may be wondering if it is possible to change employers and change jobs if visa holders find a better opportunity. This is where the H1B transfer process begins.
Can You Transfer H-1B Visa To A New Employer?
One of the H-1B benefits is the portability provision allowing an H-1B holder to preserve his or her status when they want to change job or get better job offer.
So, the answer is: Yes, if you are an H-1B visa holder, you have the right to transfer your visa status.
When the H-1B visa holders want to change employers, the new employer is the one who submits an H-1B visa transfer petition. The H-1B visa holder cannot file on his/her behalf.
Note that it is essential for the foreign worker not to have conducted any unlawful acts in the U.S. or violated his/her status. Otherwise, the petition will most likely be denied.
To obtain an H-1B visa, both parties, the U.S. employer and the prospective employee, must comply with the Department of Labor Standards’ regulations.
Do I Need Permission from My Previous employer?
Understanding the real meaning of “H-1B transfer” is essential. It’s not about transferring something from one employer to another, but the employee.
However, the previous employer does not have to “transfer” something or an H-1B employee to a different employer. This actually means that the current employer does not even have to know about you looking for a new employer. Therefore, when you hear “H-1B transfer”, it is just a new H-1B petition, all over again, without the restriction of the H-1B cap.
So, this visa will let you work temporarily in the U.S. without restrictions to look for a new job positions. To do this, the visa holder does not have to receive permission from the former employer, even though the company was the one to file an H-1B petition on your behalf.
But, of course, you do have to fulfill your contractual and non-compete obligations before transferring to a new employer.
Got the New Approval but Changed Your Mind?
If H-1B employees think there are better positions and want to change employers, they may be wondering if they can apply for transfer with multiple employers. But, if you applied for an H-1b transfer and got the approval just to decide later to continue working with the current employer, it is also possible.
First, let’s learn the difference between “H-1B status” and “H-1B visa.” If a new employer obtained a new H-1B petition approval for you, the approval allows you to transfer H-1B status to your new company. Also, this means you can continue working for the new company for as long as your H-1B petition and any extensions allow you to.
Even if your H-1B transfer is approved, you can stay with your current employer.
The one more benefit of transferring H-1B status to the new employer is that you don’t have to return to your home country and obtain a new H-1B visa.
How to Transfer an H-1B visa status?
To transfer an H-1B visa to another employer, you must:
- File a Labor Condition Application (LCA)
- Gather all necessary documents to complete Form I-129, the USCIS petition letter.
- File the petition letter with the USCIS
- Wait for the USCIS’s consideration when they approve or reject your petition.
When You Can Stop Working for The Current Employer?
The AC21 (the American Competitiveness in the 21st Century Act) allows H-1B individuals to begin working for new employers after submitting the H-1B petition to the USCIS and receiving an I-797C Notice of Action receipt.
Still, we highly recommend you not start working until USCIS has issued you an H-1B visa transfer approval.
Employers should stick to I-9 procedures and create duplicates of the H-1B visa holder’s I-94 and the USCIS receipt of the petition.
The H-1B individual must cease working with the new employer if the H-1B visa transfer petition is denied. The individual may then be considered “out of status.”
To avoid being labeled as “out of status,” it is suggested to wait until you get the approval before transferring.
H-1B Visa Transfer Qualifications
To transfer their H-1B visa, foreign workers:
- Must be under H-1B status
- Must start to work for the new employer on the date indicated on the H-1B transfer petition submitted with USCIS.
- Can begin working as soon as the employer receives the receipt from the USCIS.
- Has incurred a gap in employment (ceased employment with H-1B employer before transfer), it is advised to file premium processing.
- Are obligated to provide pay stubs as evidence of employment. However, it is possible to submit other documentation, i.e., a letter from H-1B employer or a leave of absence letter.
It may be challenging to determine whether you meet qualifications in some instances. If that’s the case, it’s best to contact your immigration attorney to understand the qualifications in-depth and lead you through the application process.
H-1B Transfer Requirements
For an H-1B visa transfer, the H-1B status holder must comply with specific transfer requirements:
- The H1B visa holder’s new employer will submit an H-1B visa transfer application with the USCIS
- The employee must not have violated any visa statuses or conducted any unlawful act
- The petition should be filed before the employment with the current employment expires
- The foreign employee can start working for the new employer from the date mentioned in the H-1B transfer petition, or as soon as the new employer receives the USCIS receipt.
- The employee must submit different supporting documents seeking an H-1B visa transfer
It is highly advisable not to start working at the new company before you get the approval of the transfer in writing and obtain a receipt number.
If you and your new employer want to use the premium processing, you should file it when you stop working with the old employer before the H-1B visa transfer.
All immigration actions require you and your new employer to submit certain supporting documents so the process can start.
Required Documents For H-1B Visa Holder
- U.S. visa, and, sometimes two forms: Forms I-797 and I-94
- Employee resume
- The proof of the employment status (pay stubs or a letter from the employer)
- University degree and the transcript
- Recommendation letter
- Academic evaluation
- Financial statements, recent pay stubs, tax returns
- Passport copy
There is no exact information on how many pay stubs you should submit, but you should prepare at least two of the most recent pay stubs.
If you are a medical professional, you will need to submit a copy of your state license.
If you have a visa stamp on your passport meaning that you were previously approved to enter the country, you will not need the new visa stamp.
Required Documents For The Employer B
New employer submits:
- Marketing documents of the company Financial statements
- Annual reports
- Business plan
- Letter of position containing the job title and salary
- The in-depth description of position responsibilities and duties
H-1B Visa Transfer Cost
There are several H-1B fees that the USCIS imposes on employers:
- The basic filing fee for the I-129: $460
- Fraud Prevention and Detection Fee: $500 (not applicable for H-1B extensions)
- ACWIA Training Fee: $750 (if your employer has fewer than 25 employees), or $1,500 (for 25 or more employees)
- Public Law fee: $4,000 (applicable only for employers who have more than 50 employees with more than half of those on H-1B or L-1 status)
- The optional fee for premium processing of $2,5000
Aside from the financial cost of an H-1B transfer, it’s important to consider hiring an attorney. All immigration attorneys have different costs, so attorney fees may vary, but it is essential to find a professional who you can trust. To the team of lawyers at Herman Legal Group, your immigration to the U.S. will be a great matter as much as it is for yourself and your family.
Throughout the H-1B transfer process, you will find that each lawyer has their fees or cost. Since each case varies significantly, we need first to identify the course of action that we need to take and include any complications or roadblocks which may arise.
Transferring from a Cap-Exempt to Cap-Subject Employer
Many people believe that they can trick the lottery by entering the U.S. through a cap-exempt employer then transferring to a cap-subject employer afterward.
However, if your new employer does not qualify as cap-exempt, they still need to file a new I-129, as all H-1B transfers require this form. This means that your petition will be submitted under the cap.
Required Documentation For Spouse and Minor (H-4)
Spouses and unmarried children under 21 can use the H-4 visa category to be submitted to the U.S. for the same period as the principal visa holder.
Benefits of Using H-4 visa
There are many benefits of using this type of visa, such as:
- Studying in the U.S.
- Not be required to maintain a foreign residence
- The ability to travel in and outside of the U.S. as long as you are still under the status
- Receive employment authorization document (EAD).
H-1B Transfer Processing Time
The processing time for the H-1B transfer documents depends on the processing method. Under a regular procedure, it usually takes 1 to 4 months for the USCIS processing center, or 15 to 30 days if you choose premium processing.
If you want to use an H-1B transfer, you must follow the same process as you would for filing a completely new petition. But, there is a big difference between the regular filing and a transfer: the transfer is not subject to the cap because it already has an H-1B status.
This is why H-1B holders can speed up the transfer process through premium processing.
Premium processing is a service that USCIS provides when a petitioner wants to receive a decision within 15 calendar days.
Still, it is important to note that this does not guarantee that your transfer will be accepted, it only can expedite the process.
If you want to transfer from a cap-exempt to a cap-subject employer, you will still need to enter the H-1B lottery. In this case, premium processing will also not guarantee you a spot in the annual cap or otherwise exempt you from the lottery.
Employment Start Date
Also, you should note one more thing: premium processing does not change your new employment start date.
You will be able to begin working for your new employer on October 1st of the year that the petition was filed.
Premium Processing Fee
The fee is $2,500 to be paid by the employer (a sponsor) or the employee (a beneficiary).
Filing an H-1B Visa Transfer petition in Four Steps
- Prepare and file the LCA (Labor Condition Application)
- Gather the required supporting documents.
- Complete the I-129 and the USCIS petition letter.
- File the petition with USCIS.
How An Immigration Attorney Can Help Me?
Understanding the ins and outs of immigration law is essential to optimizing your transfer process. To avoid common pitfalls and save yourself time and money, it’s always best to have an attorney handle your case and the bureaucratic process.
Herman Legal Group law firm is experienced in completing supplementary documentation and petitions required. Through the entire process, we advise our clients on deadlines and the best times to begin working with the new employer and prepare all necessary documentation to successfully file the petition.
With more than 15 years of experience, we are skilled in handling complex situations that may arise during the visa transfer petition process. Contact us today to book your comprehensive consultation.