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 the following year again. Once your petition is approved, you can start work no sooner than October 1 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.
H-1B Transfer Background
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.
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 that 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 1 of that year.
H-1B Transfer Premium Processing
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 you 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 your H-1B employer the filing date of the H-1B transfer, seriously consider H-1B transfer premium processing.
How to Request Premium Processing for H-1B Transfer Petition
To file a premium processing request for H-1B transfer as an employer, attorney, or representative, you will need to complete and file a Form I-907, Request for Premium Processing Service. You may file it together with the Form I-129 petition or as a stand-alone form for the already submitted I-129. If you are submitting both forms together, you must complete the two forms following the specific information for each.
If you are filing it for an I-129 that has been already submitted, you must submit the stand-alone Form I-907 to the same USCIS service center where the submitted I-129 is currently pending. It must be submitted with a copy of the Receipt of Notice, Form I-979 for the pending Form I-129. If USCIS has transferred the case to another service center, and you received a transfer notice, it is best to submit the I-907 to the service center currently in charge of the pending petition. You will, however, need to include the transfer notice. Any I-907 filed at a service center without geographic jurisdiction over the pending I-129 would be rejected by USCIS.
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 VisaNation Law Group’s 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 U.S. and get your new visa stamped at the Consulate before re-entering the U.S. in H-1B status.
- If you don’t have pay stubs 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 you 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.
240-Day Portability Rule for H-1B Transfer
You must also consider the 240-day portability rule which allows the beneficiaries of H-1B amendments filed with extension or transfer some grace period after the expiration of their I-94. Once the requested start date has reached or the petition has been received by USCIS (whichever comes first), you may start working for the employer on the basis of the pending petition.
That said, it is worth noting that different rules apply to an extension petition filed by the same employer and a transfer petition filed by a new employer. In the case of H-1B extension, the employment authorization is limited to 240 days. In other words, if the petition for an extension is denied within the 240-day period, the work authorization would end immediately. Also, if the extension petition remains pending after the 240-day grace period, the beneficiary will have to stop working.
For an H-1B transfer, however, the rule is different. If your H-1B transfer was submitted before the expiration of your I-94 and remained pending beyond 240 days, you will be allowed to continue working even after the 240 days have elapsed. Your stay wouldn’t be counted as unlawful presence, as you would still be considered to be in a period of authorized stay, unlike the extension case.
However, if your transfer petition is denied anytime within the 240-day period or after the 240-day period, your work authorization would end that day. You would need to stop working and depart the United States.
How to Avoid H-1B Transfer Petition Denial
H-1B transfer petition denial can happen due to various reasons. The most common reasons for H-1B transfer denial include failure by the employer to meet USCIS requirements for sponsoring the visa, employee’s lack of specialized knowledge, failure to pay fee or payment of an insufficient fee. Others are having insufficient proof of employer-employee relationship, previous violation of immigration law, the inability of the employer to pay prevailing wage, and submission of application at the wrong service center address.
Each of those causes must be carefully looked into when filing your H-1B transfer. For instance, USCIS takes a valid employer-employee relationship so seriously. As such, you will need to ensure that all documents that can help you prove this are included in the petition. The employer must demonstrate that they will be in control of the employee’s work itinerary all through the job authorization for the petition.
Similarly, the employer must also provide proofs that demonstrate their financial ability to pay the average salary paid to similarly employed H-1B workers in specific job positions in the area of intended employment.
What If My H-1B Transfer Petition Is Denied?
The next line of action after the denial of H-1B transfer will depend on the exact reason the petition was denied. Regardless, the most ideal thing is to first speak with your immigration lawyer to see the possibility of salvaging the case, either by an appeal or a motion for reopening or reconsideration of the case. Unfortunately, however, denial notice sometimes contains some factors that may make appealing the case a difficult step. But you should still be able to explore the legal motion for the case to be reconsidered or reopened.
H-1B Transfer Premium Processing FAQs
Can the H-1B beneficiary seek premium processing?
No, as a beneficiary, you cannot submit a request for premium processing for your H-1B transfer petition. Just as you are not allowed to self-petition for other H-1B-related applications, such as initial filing, an extension of stay, you cannot request premium processing yourself. Your employer is the only authorized individual or entity allowed to seek the premium processing service.
However, if your employer would like, they may ask an attorney or accredited representative who has filed a Notice of Entry of Appearance, Form G-28, to request premium processing on their behalf. While any of the parties (the petitioner, attorney, representative, or employee) can pay the fee for premium processing, the beneficiary is not allowed to sign on the petition.
Is Premium Processing Available for Form I-539?
No, premium processing is not available for I-539 applications. Even if it is submitted together with Form I-129, USCIS will not process it within the same 15 calendar days. However, as a courtesy, the agency will still strive to quickly adjudicate it if filed together with Form I-129.
In other words, while the processing time may be longer than 15 calendar days when submitted with Form I-129, it will be quicker than when it is submitted afterward. The reason why USCIS cannot make a decision on I-539 within 15 calendar days is that the application requires biometrics data before its adjudication can be completed.
Form I-539 is also the application for extending of status for an H-1B beneficiary’s dependents, otherwise known as H-4. The form is officially known as Application to Extend or Change Nonimmigrant Status. Therefore, if your spouse’s or children’s status will be expiring soon, they may need to request an extension of stay just as you also process the transfer.