Imagine that you are going through the H-1B visa approval process through company A, but company B provides you with an offer that is either more secure or more lucrative. Before you apply for an H-1B visa transfer (or more accurately, an H-1B petition with a new employer) before stamping, consider discussing your situation with a qualified immigration attorney. It will help ensure that you are making the best decision.
The above example, while not uncommon, is just one possible reason that you may want to change the company you are using to enter the U.S. When deciding whether to get an H-1B visa transfer before stamping or after stamping, it helps to understand the H-1B process and how you can maneuver within it.
When dealing with USCIS visas and immigration, it can be easy to disrupt or sabotage your own efforts by making a poor decision during filing or processing phase. Because an interruption can mean months of delay, it is important to do things carefully and with legal guidance.
One of the great benefits of the H-1B visa is the fact that you can transfer your status from one employer to the next with relative ease. In fact, the American Competitiveness in the 21st Century Act (AC21) has made the transfer process even easier. In order to transfer, you will need to file a new petition. However, under the AC21, you will be able to start working for your new employer as soon as the petition is filed provided that you meet the following requirements:
- You were lawfully admitted to the U.S.
- The petition is considered non-frivolous, which means that it is based on law or fact.
- You have never been employed in the U.S. in an unauthorized way
- Your H-1B status has already been approved with your current employer
Why Should You Transfer?
If you are in the process of obtaining an H-1B visa, you already know that it is a non-immigrant visa option for foreign workers with specific knowledge, education, or expertise that will allow you to be employed by a U.S.-based organization.
Because of this, you are not able to petition on your own behalf. Instead, your employer will file the required application with the USCIS. If the employer who initially sent the application is either unwilling or unable to complete the process or you find a better
opportunity with a different U.S. employer before you enter the U.S., an H-1B visa transfer before stamping may be necessary.
Making it through the lottery and getting an H-1B visa petition approved is no small task, so it is understandable to be cautious when making changes. That’s why deciding whether you should transfer your employment before entering the U.S. or waiting until you have arrived to change is an issue to discuss with an immigration attorney.
Here are the facts surrounding both scenarios:
H-1B Visa Transfer Before Stamping
If you are still outside the U.S. and have received approval for your petition but have yet to get it stamped on your passport, there are some things to consider associated with getting an H-1B visa transfer before entering the U.S.
The first is that filing for a transfer is essentially filing a new H-1B petition, before or after stamping. This petition, however, does not require re-entry into the H-1B lottery. Even though your new employer is filing a new petition, you have already been counted in that year’s visa cap. This means that you do not have to compete again with thousands of other applicants to secure your approval.
The primary concern is if the employer who initially submitted the approved petition were to learn of a petition of transfer being filed on your behalf, he or she would be able to withdraw their approved petition. This would re-enter you into the lottery and void the second company’s petition, meaning that you would find yourself competing in the lottery to have your petition approved again.
Fortunately, the amount of information that your initial employer receives is up to you. The USCIS does not inform anyone of the petitions it gets and so will protect your privacy. If you are worried about the possibility of petition withdrawal, consider asking your immigration attorney about premium processing.
H-1B Visa Transfer After Stamping
Waiting until you have entered the U.S. is safer than getting an H-1B transfer before stamping since your employer’s petition cannot be withdrawn after the visa has been stamped. Then you can simply have the new employer file a second lottery-free petition on your behalf.
Because a gap in employment could mean weeks or even months of lost wages, you may have to work with your initial employer while the transfer petition is being processed. Once your new employer has received an I-797 Notice of Action Receipt form, you are free to transfer your employment.
Using Premium Processing
Fortunately, you can use premium processing for your transfer petition regardless of whether you are transferring your H-1B before or after stamping. Premium processing is an optional service provided by the USCIS that shortens your I-129 petition’s processing time to just 15 calendar days.
However, because you are filing a new petition, you are still opening yourself up to being denied by the USCIS. Premium processing will not help you increase your chances of approval. If your petition is not adjudicated in the 15-day period after premium processing has been requested, the USCIS will refund your premium processing fee (not your petition’s filing fee) and process your petition normally, which takes about six months depending on the caseload of the service center.
Transferring from Cap-Exempt to Cap-Subject Jobs
One aspect of the H-1B transfer that people often try to exploit is the cap-exempt to cap-subject transfer. The thought is that one could enter the U.S. through a cap-exempt employer to avoid the lottery, then simply transfer to the cap-subject employer of their choosing.
It may sound like a waterproof plan, but the problem arises when you realize that you always need to file a new petition whenever you transfer your H-1B status. When the USCIS sees that your new employer is cap-subject and that you have not yet been counted against the cap, you will be subject to the lottery and all the restrictions that accommodate it.
You will have to file the cap-subject transfer petition on the first business day in April. If you file at any other time, the petition will be rejected without a refund. You will also be prohibited from working for your cap-subject employer until the first business day in October. So, in order to permanently avoid the cap, you need to transfer exclusively to cap-exempt employers. As soon as you file to transfer to a cap-subject employer, you’ll be entered into the lottery.
How an Attorney Can Help
At SGM Law Group, our dedicated team of expert attorneys has a long history of success helping people through the maze of immigration law. Our lawyers will analyze your unique situation to help you determine whether you should file for an H-1B visa transfer before stamping or afterward.
If you need legal counseling on this issue, contact one of our experienced immigration lawyers to join the countless success stories we provide. Fill out the contact form to see if you qualify for a free consultation.