Individuals with H-1B visa status, or previous status, have the ability to transfer to a different employer. The visa holder does not have to receive permission from the former employer for the H-1B visa transfer, though the individual does need to follow non-compete laws or any other contractual agreements the individual might have conceded with the employer.
In order for the H-1B holder to change employers, the new employer is required to submit an H-1B visa transfer petition with the USCIS. The H-1B visa holder cannot file on his/her own behalf. It is important for the individual to not have conducted any unlawful acts in the U.S. or violated his or her status. Otherwise, the petition will most likely be denied.
Time to Work with the New Employer
The AC21 allows H-1B individuals to start working once the new employer has submitted the H-1B petition to the USCIS and received an I-797C Notice of Action receipt.
However, it is recommended for the H-1B holder to not start working until he/she has received H-1B visa transfer approval from the USCIS.
Employers are advised to adhere 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”, again, it is greatly suggested to wait until approval has been obtained prior to transferring.
H-1B Visa Transfer Qualifications:
- The individual must start employment on the date indicated on the H-1B transfer petition submitted with USCIS. The individual must be under H-1B status.
- The individual has the opportunity to start working the day the employer receives the receipt from the USCIS.
- If the individual has incurred a gap in employment (ceased employment with H-1B employer prior to transfer), it is advised to file premium processing
- The individual is 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 leave of absence letter.
In some instances, it may be difficult to determine whether you adhere to the qualifications. If that’s the case it’s best to contact your H-1B transfer attorney in order to understand the qualifications in depth.
H-1B Visa Transfer Documents:
Like with all immigration actions, there are many documents that must be acquired and filled out comprehensively in order to start the bureaucratic process of transferring your H-1B status to a new job. There are transfer documents required from both you, the H-1B holder, and your employer sponsor.
H-1B Visa Holder:
- U.S. visa, I-797, and I-94
- Paystubs, letter from employer, or leave of absence letter
- University Degree
- University Transcript
- Academic Evaluation5/
- Letter of position containing the job title and salary. It must be signed by the employer and H-1B visa holder.
- An in-depth description of position responsibilities and duties.
- Marketing material from company
- Financial statements, annual reports, or business plans
H-1B Visa Transfer Cost
Throughout the H-1B transfer process, you will find that each lawyer has their own H-1B visa transfer fees or cost. VisaNation Law Group’s H-1B visa transfer lawyer fee is determined after an initial consultation with new clients. Since each case varies significantly, we need to first identify the course of action to take and include any complications or road blocks which may arise. If you decide to file for the regular H-1B cap, the attorney fees for H1B visas is $2,100. On top of that, there are several H-1B fees that the USCIS imposes on employers:
- Basic filing fee for the I-129: $460
- Fraud Prevention and Detection Fee: $500. This fee is not applicable to H-1B extensions.
- ACWIA Training Fee: $750 (if your employer has fewer than 25 employees) and $1,500 (for 25 or more employees)
- Public Law 114-113 fee: $4,000 (only if your employer has more than 50 employees with more than half of those on H-1B or L-1 status)
- The optional fee premium processing fee of $2,5000
VisaNation Law Group’s fees page has a list of fees for H-4 visas, H-1B1 visa for Singapore/Chilean Citizens and other related categories.
Aside from the financial cost of an H-1B transfer, it’s important to select an attorney who has your best interest in mind above all else. We recognize that your immigration to the U.S. is a serious matter not only for yourself but for your entire family as well. Keep reading below to learn how VisaNation Law Group’s lawyers can help with H-1B visa transfer.
Transferring from a Cap-Exempt to Cap-Subject Employer
Many people believe that they can subvert the lottery by entering the U.S. through a cap-exempt employer, then transferring to a cap-subject employer afterward. However, because all H-1B transfers require your employer to file a new I-129, your petition will be submitted under the cap if your new employer does not qualify as cap-exempt.
Always work alongside your immigration attorney throughout the H-1B transfer process to make sure that you are making the best decisions for your case.
Documents for Spouse and Minor (H-4)
Spouses and unmarried children under 21 can be admitted to the U.S. under the H-4 visa category. Through this process, qualifying members are granted admittance for the same period of time as the principal visa holder. There are many benefits to the H-4 visa including studying in the U.S., not being required to maintain a foreign residence, the ability to travel in an out of the country as long as you are still in status, and now the ability to
There are many benefits to the H-4 visa including studying in the U.S., not being required to maintain a foreign residence, the ability to travel in an out of the country as long as you are still in status, and now the ability to receive employment authorization document (EAD).
However, in order to qualify for an EAD card, the principle H-1B holder must have an approved I-140 filed with the USCIS. If that I-140 is revoked or the H-1B holder transfer’s employers, the H-4 EAD holder will not be able to renew his or her employment authorization until an I-140 is approved.
H-1B Visa Transfer Premium Processing
H-1B holders can expedite the transfer process through premium processing. Premium processing will be able to provide a USCIS decision within 15 calendar days for a fee of $1,225.
However, it is important to note that premium processing does not guarantee that your transfer petition will be accepted. It only speeds up the processing time for your petition, nothing more. If you are transferring from a cap-exempt to a cap-subject employer, then you will need to be entered into 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.
You should also note that premium processing does not change your 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.
Important Update (3/3/2017): The USCIS has recently announced that it will not be offering the premium processing service for all H-1B visa petitions for up to six months. This includes not only new H-1B petitions, but also petitions filed for H-1B extensions, H-1B amendments, and H-1B transfers.
Since this suspension will go into effect on April 3, 2017, the same day that the USCIS will begin accepting petitions, it applies to all petitions filed for the 2018 season. Fortunately, the USCIS will offer a refund to petitioners if the following to requirements are met:
- The premium processing form I-907 was filed before April 3, 2017.
- The USCIS failed to process the petition within 15 calendar days
The reason for this temporary suspension is so that the USCIS can address some petitions that have been pushed aside due to the increasing number of premium processing petitions being filed.
H-1B Visa Extension
Interested in revalidating or extending your H-1B visa? As a general rule of thumb, a United States visa is typically revalidated if you have the same classification in your passport as that which you’re trying to extend (or revalidate). Say you’re trying to get an H-1B visa but are currently in a different category. That’s the type of situation that would be best suited for a transfer.
If you meet the qualifications to file for an H-1B extension rather than a transfer, you’ll need to follow very specific protocol. Upon entering the country, the port of entry officer will issue an I-94 in your passport. They will then write the validity period in the country on your I-94, which is basically the date in which your can stay legally in the U.S. until. At that point, you should file for an extension of stay as soon as possible before the duration of status expires.
H-1B Transfer Processing Time
Although it may vary from case to case, processing for an H-1B transfer typically takes 4-8 weeks after the application has been submitted to USCIS. Other factors that affect the H-1B transfer process length is the location of employment and which USCIS processing center is responsible for the application.
The Federal Register’s Final Rule
The Department of Homeland Security’s Federal Register has implemented a new rule that took effect on January 17, 2017. This rule brought with it several changes to many aspects of the H-1B visa, including the H-1B visa transfer.
There is a section in the new rule that mentions the ability for an H-1B holder to switch employers in the same occupation. According to the new regulations, the I-485 Supplement J will now be the form required to prove that your status has been maintained and that you are eligible for an H-1B visa transfer to a new employer.
Along with the Supplement J, you will now be able to submit a wider variety of evidence through the regulation phrase “material and credible documentary evidence”. In the past, only evidence that was submitted by an approved federal entity would be considered for your H-1B transfer. Now, you will be able to provide evidence from outside sources. Be sure to speak with your immigration attorney to learn what qualifies as approved evidence.
Transferring H-1B Jobs to Your Own Business
While there is no way to petition for yourself, there is a loophole that allows business owners to use their company to support their H-1B. To be able to transfer your H-1B status to your own business, you will have to have a system that does not include you being the sponsor. A legitimate employer-employee relationship must exist, so how do you do that as the owner?
The most common practice (though this entire situation is uncommon) is to set up a CEO or board of directors that has the power to control your salary, dictate your tasks, and even fire you. This entity must sponsor you, as you cannot sponsor yourself. Proving that an employer-employee relationship exists in this situation can be difficult, so if you’re planning on transferring your H-1B job to your own business, it’s best done with the help of an experienced attorney.
H-1B Transfer FAQs
VisaNation Law Group’s attorneys frequently get asked about the H-1B transfer process and credentials necessary to carry out a transfer. Below are the most common questions:
Q. Does the normal H-1B cap have any effect on my H-1B transfer process?
The regular H-1B cap is a completely separate process on its own. The great thing is the regular quote will not impact your chances of receiving an approval. Because you have already been counted against the cap, your H-1B transfer petition will not be entered into the lottery.
Q. Prior to applying for an H-1B transfer with a new employer do I need to tell my current employer?
You are not required to tell your current employer about an H-1B transfer. It is up to your what information you decide to reveal to colleagues and employers.
Q. Is there a maximum number of times I may apply for a transfer?
There are no limits imposed on the number of times you may apply for a transfer. Portability is one of the many benefits to having an H-1B visa over other work visas such as the L-1 visa.
Q. Am I allowed to apply for an H1B transfer with more than one employer at a time?
Yes, there is nothing preventing you from applying to work for multiple employers. Because the H-1B visa allows you to work part-time, you may also work for multiple employers simultaneously.
Q. Can I start working for my employer if I only have an H-1B transfer receipt and the petition has not been approved yet?
Yes. As long as certain requirements are met, you may begin working at your new H-1B job before receiving approval as long as you have gotten a receipt that the USCIS has received your petition. The requirements to be met are these:
- You must not have ever been employed in a manner outside of your authorization
- You must already have a valid H-1B status, meaning that your H-1B status must not have expired.
- You were lawfully admitted to the U.S.
If you can check all of these boxes, then your H-1B transfer petition will likely be approved and you can start working for your new employer. Keep in mind that you do not necessarily need to get an official receipt from the USCIS—a receipt from your mail carrier will work.
However, if the USCIS denies your transfer petition, you will need to cease working immediately and make plans to leave the U.S. or find a new H-1B job before your 60-day grace period expires. Therefore, you must consider the risk that comes with working for the new employer before official approval notice.
Q. If I have an H-1B visa stamp from my previous employer but now have received a new approval (new employer) will I need to get another H-1 visa stamped in my passport?
Being on H-1B status and having an H-1B visa stamp are in fact different things. The visa stamp is used as a way to enter the United States while H-1B status is required in order to work for your petitioning employer.
Say you received approval for your new H-1B employer; that means you can only legally work for that employer. However, if you travel outside the country and your H-1B stamp is still valid then you can use that in conjunction with your new petition to travel back into the country.
What happens if your H-1B visa stamp has expired? Then you need to get your passport stamped again before traveling back into the U.S. An H-1B transfer attorney can better direct you regarding this type of situation.
Q. Is there an abbreviated H-1B visa transfer process or a quicker way to file?
We often get this question since so many individuals assume that an H-1B visa transfer is a quick and easy deal. Unfortunately, it’s not that simple. All filings must be complete and fully establish an applicant’s eligibility in that category.
If you do not meet the necessary compliance requirements or are missing information in the documents, you risk being denied. For that reason, it’s strongly advised to seek help from an experienced H-1B transfer lawyer.
Q. What if apply for an H-1b transfer with another employer and it’s approved but later decide to continue working with my current employer?
You can stay with you current employer even if your H-1B transfer is approved.
Q. Typically, how many pay stubs should I submit from a previous employer?
The last two or three pay stubs should suffice, though you should consult your immigration attorney to be sure.
Q. If I have an H1B that was previously approved but not used can it be transferred from outside the U.S.?
An H-1B transfer is essentially a new application that is not cap-subject. If you are able to show proof of a previous approval (i.e., receipt number, copy of I-797) then the new employer can transfer the H-1B even if you have yet to enter the country.
Q. What should I do if I received an approval notice for my transfer but it doesn’t have a new I-94?
You may not have been issued a new I-94 if your current one has not yet expired and is still valid.
Q. Are H-1B transfers subject to the cap?
No, they are not subject to the H-1B cap. You have already been counted against the cap and so you are able to have an H-1B transfer petition filed at any time and without fear of not being selected.
How An H-1B Transfer Attorney Can Help
Understanding the ins and outs of immigration law is essential to optimizing your H-1B transfer process. To avoid common pitfalls and to save yourself time and money, it’s always best to have an H-1B attorney handle your case. This way, the only thing you have to worry about is what you’re going to wear on your first day at your new job.
VisaNation Law Group’s H-1B visa lawyers are experienced in completing supplementary documentation and petitions required for H-1B Visa Transfers. We are capable of advising clients on deadlines and the best times to start working with the new employer.
VisaNation Law Group’s H-1B lawyers are skilled in handling complex situations that may arise during the H-1B visa transfer petition process. Contact an H-1B transfer attorney today to schedule your comprehensive consultation.