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B-1 to H-1B Transfer

B-1 to H-1B Transfer

Many B-1 and B-2 visa holders wish to transfer their status to the H-1B category. A B-1 visa is for temporary business visitors who intend to participate in business activities that are commercial or professional in nature. These may include consultations with business associates, negotiating contracts, settling estates, participating in training sessions, etc. There are instances, of course, in which a B-1 visa holder may wish to transfer to an H-1B. In this post, we’ll explore the B-1 to H-1B transfer process as well as other crucial details for making the switch.

 B-1 Versus H-1B

There are not many similarities between the B-1 and H-1B visas, so to understand the transfer from B-1 to H-1B status, we’ll need to explore both visas. Note that there is no automated process that takes you from one visa status to the next. If you would like to transfer, you will need to start from square one.

B-1 Visa

The B class visas are visitor visas that are intended for tourists and international business visitors to spend a short amount of time in the U.S., usually about a six-month maximum period of stay. There are two categories within the B class:

B-1: for international visitors who wish to come to the U.S. for business reasons. These can include conferences, conventions, meetings, estate settlements, contract negotiations, and many other things.

B-2: for visitors that would like to visit the U.S. as tourists.

While there are no eligibility requirements for the B-1 other than your intentions (as almost anyone who passes a background check can tour the U.S.), there are some strict limitations to it:

  • You cannot be paid for any work done for a U.S. enterprise during your stay. This includes being paid for a performance or for participation in events or contests. Put simply, the only entity that you can receive payment from is the overseas company you work for.
  • You also cannot enroll in a course in which you earn credits. On the other hand, short recreational courses, such as cooking or pottery, are permitted.

The main drawback to using the B-1 as a medium by which to obtain H-1B status is the short period of stay. As we’ll see, 6 months will likely not be enough time to secure your H-1B visa.

H-1B Visa

As the nonimmigrant visa in the highest demand, the H-1B’s popularity is also one of it’s biggest disadvantages. The H-1B visa is designed for specialty workers that hold relevant bachelor’s degrees. Here are the basic requirements:

  • You must have a bachelor’s degree
  • You must have a valid job offer from a U.S. employer
  • That job offer must be for a specialty position that requires your degree
  • You and your employer must have a legitimate employer-employee relationship (meaning that you cannot petition for yourself and that your sponsoring employer must be able to control your employment)

If granted, the H-1B would allow you to stay and work in the U.S for a period of up to 7 years. You can also switch employers at any time by having the new employer file a new petition on your behalf.

Why Transfer?

There are many advantages that the H-1B has over the B-1, such as the ability to work for a U.S. company and the ability to stay for up to seven years in the country. Plus, because the H-1B is considered a dual intent visa, you also have the ability to apply for your green card while under H-1B status. If your goal is to work in the U.S. for an extended period of time or even permanently, switching from B-1 to H-1B status may be the perfect option.

 

Normal H-1B Filing Process

There is no specific method that must be used if you are transferring from B-1 to H-1B status. The process is the same for everyone and it begins with finding a sponsoring U.S. employer. Your sponsor will be responsible for most of the H-1B process including filing the petition and paying the requisite fees.

The normal H-1B filing process involves the U.S. sponsoring employer filing Form ETA-9035 (Labor Condition Application) online through the iCert Portal. They must then receive an approval of the LCA prior to filing the I-129 (Petition for a Nonimmigrant Worker).

Once the LCA is approved, your employer must file the petition to the USCIS on the first business day in April of the year that you wish to start working. At this point, because of the overwhelming amount of petitions received each year, your petition will be entered into a lottery. The USCIS will then use a computer to randomly select 20,000 petitions from the pool of applicants that have advanced degrees. Any that are not chosen will be re-entered into the regular pool of applicants with bachelors degrees for a second lottery, where 65,000 more petitions will be chosen.

If your petition has been chosen in the lottery, it will then be processed, which can take around six months. If your petition is approved, then you will be notified and you will be able to start working for your employer on October 1st of the year that you petitioned. On that day, your status will change to H-1B.

Can I Use Premium Processing?

Yes, because the H-1B uses the I-129 petition, it is possible to use the premium processing service to have the USCIS adjudicate your petition in just 15 calendar days. However, there are several things to note about this:

  • Premium processing is not a guaranteed service. There have been many times in which it has been suspended in the interest of allowing those without premium processing to be adjudicated.
  • It does not guarantee that your petition will be chosen in the lottery or increase your chances of selection. It also does not guarantee that your petition will be approved once selected.
  • Because you cannot begin working until six months after the petition is filed, having your petition processed in 15 days may not be very advantageous. That being said, in cases such as if you receive a Request for Evidence, premium processing might be helpful. Your immigration attorney will be able to help you through this decision.

How Much Does the H-1B Cost?

Making the B-1 to H-1B transfer can be a costly endeavor. However, it is important to note which H-1B fees are to be paid by your employer and which are your responsibility. The following are to be paid by your employer:

  • Basic I-129 filing fee – $460
  • Fraud Prevention Fee – $500
  • ACWIA fee – $750-1,500 (This varies depending on whether or not your employer has more than 25 full-time workers under H-1B status)
  • Public Law 114-113 fee – $4,000

Here are the fees that you may be responsible for:

  • Premium processing fee – $1,440
  • Any fees associated with H4 dependents traveling with you
  • Attorney fees – these vary widely. Visit our fees page to see our flat charge for H-1B visas.
  • DS-160 – $190. If you are unable to transfer your status from B-1 to H1-B, you will need to return to your home country and complete this online form before returning to the U.S. under H-1B status.

B-1 to H-1B Transfer Procedure

If you are able to have your H-1B petition approved, then the soonest you can start under the H-1B visa is October 1st. If you happen to be delayed and find that the H-1B quota has been reached then you’ll have to wait until the following year to have the petition filed on your behalf by the sponsoring employer. Note that you must have a valid status in the U.S. in order to file from here, otherwise you’ll need to return to your home country and continue the process through consular processing.

As you can see, there is exactly a six month gap between when your petition is filed and when you will obtain H-1B status. Because the longest period of stay under a B-1 visa is six months, it would require careful timing and a highly experienced attorney to use the B-1 visa as a transitioning point to H-1B status.

Begin the Filing Process Early

The attorneys at SGM Law Group can help you begin the filing process. On average this can take anywhere from six to nine months, however the sooner you get started the better your chances for an approval. Also be sure to discuss premium process if your case needs to be handled in an expedited fashion. By opting for premium processing you’ll receive an answer as to whether or not you were approved in less than a months. Additional costs will be incurred for this option.

Not sure an H-1B visa is the appropriate course of action? There are alternatives to the H-1B visa which may be more beneficial to your situation. These include the O-1 Visa for those who have extraordinary ability or achievement in the field of business, education, arts, science, athletics, etc. Another option is the L-1 visa which is used by companies who have offices within the United States to transfer employees temporarily to the U.S. Click here to learn about other H-1B Visa alternatives.

 How our H-1B Attorneys Can Help

With so many options to choose from, it’s important to select a law firm that has your best interest in mind. Our dedicated immigration professionals have an excellent track record in H-1B approvals as well as transfers from other business visas like the B-1 visa. We charge highly competitive filing fees and will do everything in our power to secure an approval on your behalf.

As a benefit to our clients, we offer free consultations to explore your immediate options and whether a B-1 to H-1B transfer is possible.

To find out if you are eligible for a B-1 to H-1B transfer and to see if your case is qualified for a free consultation, you can contact one of our attorneys by filling out this contact form.

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