An H-1B transfer is the best course of action for individuals who are currently on H-1B visa status but want to transfer their status to a different employer. Unlike the regular H-1B season, these are not subject to quota restrictions so the new employer can submit an H-1B visa transfer petition to USCIS at any point–assuming there are no non-compete clauses or agreements in effect at the time. Any unlawful acts in the U.S. may also jeopardize the ability for the H-1B transfer petition to be approved. Individuals may elect for regular H-1B transfer processing or H-1B transfer premium processing to have it expedited.
How the H-1B Works
To get a better idea of how an H-1B transfer works, it’s important to have a foundational understanding of how the visa works as a whole, as some aspects of the requirements and process will come up later.
As you know, the H-1B is a work visa for specialty occupations. The exact nature of a specialty position is up to the USCIS, though the general criterion is that the position must require at least a bachelor’s degree to perform. Usually, jobs in the STEM categories (science, technology, engineering, mathematics) fare better for H-1B approvals.
Your specialty position will need to be with a U.S. employer who is willing to not only offer you the position but also sponsor you for your H-1B. That employer has to get a Labor Condition Application for you before filing your I-129 petition with the USCIS on the first business day in April. Keep in mind that your employer does all of this, not you the beneficiary.
Then, if your employer is subject to the annual H-1B cap, your petition will be entered into the lottery to be randomly selected for processing. If your petition is selected, then it will go on to be approved or denied. If it is not selected, then everything will be returned to your employer and you will need to try again the following year. Once your petition is approved, you can start work no sooner than October 1st of the year that your petition was filed.
If your employer is not subject to the cap, then the petition can be filed at any time and will not be entered into the lottery. Also, if the petition is approved, you can begin working immediately and do not need to wait until October.
Essentially an H-1B transfer follows the same process as the regular H-1B visa in terms of documentation (except there is not H-1B cap imposed). Based on the American Competitiveness in the 21st Century Act (AC21) a foreign national worker may file for an H-1B transfer petition if they have not accrued unlawful presence.
To file the H-1B transfer you need to submit a number of documents including:
- A copy of the job offer from the employer detailing the salary, job title and signatures from both the employer and employee
- Copy of recent pay stubs or a letter to serve as proof of employment
- Copies of approval notices (I-797, I-94’s and any other visas)
- Copies of academic degrees, transcripts or diplomas
- Previous approval notices
- Recent resume
- Copy of your social security card
- Copy of the pages in your passport
- Copy of any W-2’s or tax returns, if applicable
What’s beneficial about an H-1B transfer is it can be applied for more than one employer simultaneously and there are no limits on the number of H-1B transfers you can get.
Click here to learn about H-1B Cap Exempt Jobs--not subject to the annual quota limits.
Because H-1B transfer petitions are not subject to the cap, the petition can be filed at any time and you are not limited to waiting until October to work.
Cap Exempt to Cap Subject
When it comes to an H-1B transfer, many people think that they can exploit this system by entering the U.S. through a cap-exempt employer and transferring their status to a cap-subject employer to avoid the cap altogether. Obviously, this is not possible.
The reason that most H-1B transfer petitions are not cap-subject is because you have already been counted against the cap in the past. If you have not, then the next time you file a petition for a transfer, the USCIS will determine whether or not you are still cap-exempt. Therefore, if you entered the U.S. through a cap-exempt employer and you have a petition filed to transfer your status to a cap-subject employer, that petition will be entered into the cap. This means that it must be filed on the first business day in April and you will not be able to work for your new employer until October 1st of that year.
H-1B Transfer Premium Processing
IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.
There are a few important points to remember about H-1B transfer petitions. The first is you must be employed on H-1B status the date that the transfer is filed with USCIS. The earliest day your are permitted to begin work is the day USCIS receives the I-129 transfer petition.
If for whatever reason there is a gap in employment from the period you stopped working for you H-1B employer the filing date of the H-1B transfer, seriously consider H-1B transfer premium processing.
Difference Between Regular and H-1B Transfer Premium Processing
The regular H-1B transfer process takes anywhere from one to four months whereas H-1B transfer premium processing takes only 15 calendar days. The fees for an H-1B transfer (if you opt out of premium processing) are nearly identical to your original H-1B filing fees.
- I-129 fee is $460
- The ACWIA Fee for less than 25 employees is $750 or $1,500 for more than 25
- The fraud prevention fee is $500
- Premium processing fee of $1,440
Attorney fees may vary so it’s best to contact our Fort Lauderdale immigration attorneys to learn more.
Typically, the USCIS does not give out refunds. However, premium processing is an exception in this case. If the USCIS fails to adjudicate your petition within 15 calendar days after the I-907 has been submitted, then the fee will be refunded and the petition will be processed normally.
H-1B Transfer RFE
If you receive an H-1B Transfer RFE, don’t panic. An RFE is merely just a request for additional evidence before an H-1B approval or denial. In most cases, the USCIS requests things like:
- Proof of educational degrees and qualifications for the position
- Tangible evidence of past work experience
- Documentation from the employer showing the ability to pay the employee
There are four main types of RFEs including:
- Proof of an employer/employee relationship: Additional information may be necessary to prove that an authentic employer/employee relationship exists.
- Evaluation of education and degrees: These may be issued to individuals who have degrees from outside of the U.S. The USCIS may examine the institution or university abroad to see how it compares to the U.S. degree requirements.
- Determination of a specialty occupation: In order for an H-1B visa to be approved, you must demonstrate qualification in a “specialty occupation”. However, to qualify as such, you must meet the minimum requirements, typically a bachelor’s degree or higher in a correlating field.
- Financial documents from new businesses: These are typically issued to businesses and companies in operation for fewer than 3 years or who haven’t filed an H-1B prior.
Read H-1B Transfer RFE – The Complete Guide to learn more about this process and how an H-1B transfer lawyer can assist you.
Summary of Important Points
- Technically, once you stop working for the H-1B employer, you are no longer in H-1B status. You should apply as quickly as possible for new H-1B and premium processing is a good choice. Keep in mind that USCIS may approve the new H-1B but may not approve the extension of status since you are no longer in H-1B status during that gap. If USCIS approves the new H-1B and not the extension of status, you will have to leave the US and get your new visa stamped at the Consulate before re-entering the U.S. in H-1B status.
- If you don’t have paystubs to prove employment status USCIS could consider this as being “out of status” during your H-1B. USCIS may approve the new petition but could ask you to go and get your H-1B stamped at the Consulate.
- The soonest your are able to start working is when USCIS receives your I-129 H-B transfer petition although most people start working for the new employer as soon as the new petition is filed. You should wait until you have the receipt in hand from USCIS.
If you have any additional questions regarding H-1B transfer premium processing or any other procedure, it’s best to contact an H-1B visa attorney.
How Our H-1B Transfer Attorneys Can Help
An H-1B transfer can be a difficult feat for anyone who does not have years of immigration industry experience. There are all kinds of mistakes and pitfalls that can cost you both time and money. Hiring an immigration attorney is a great way to protect your investment and ensure that you have the best chances for approval.
Our H-1B Transfer lawyers have the knowledge and experience necessary to handle your case. The immigration attorneys at SGM Law Group are able to file your H-1B transfer premium processing petition in a timely manner and keep you updated on the progress.
Contact us to see if you qualify for a free phone consultation relating to your case. One of our attorneys will examine your scenario and offer the appropriate course of action.