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Individuals with H-1B visa status, or previous status, can transfer to a different employer. The visa holder does not have to receive permission from the former employer for the H-1B visa transfer. For the H-1B holder to change employers, the new employer must submit an H-1B visa transfer petition with the USCIS. We’ll cover the transfer process, H-1B transfer documents, change of employer, fees, and more.
The following are the steps employers and visa holders must follow for a successful H-1B visa transfer:
The H-1B transfer process seems simple enough, but there are important do’s and don’ts that employers and visa holders need to understand.
Have the new employer file the transfer instead of the visa holder
Conduct any unlawful acts
Follow non-complete laws with the original employer
Violate H-1B status
Follow any contractual agreements with the original employer
Start working for a new employer until USCIS sends I-797C or approves the transfer
Adhere to I-9 procedures
Have the visa holder file the trasnfer petition
Create duplicate of I-94 and I-797C
In some instances, it may be challenging to determine whether you adhere to the qualifications. If that’s the case, it’s best to contact your H-1B transfer attorney to understand the qualifications in-depth.
Like with all immigration actions, you should comprehensively acquire and fill out many documents to start the bureaucratic process of transferring your H-1B status to a new job. The H-1B transfer documents USCIS requires differ for the H-1B holder and the new employer sponsor.
The H-1B transfer fees are the same as filing a regular H-1b petition.
Throughout the H-1B transfer process, you will find that each lawyer has their 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 identify the course of action to take and include any complications or roadblocks. If you decide to file for the regular H-1B cap, the attorney fee for H-1B visas is $2,100. VisaNation Law Group’s fees page lists prices for H-4 visas, H-1B1 visas for Singapore/Chilean Citizens, and other related categories.
Spouses and unmarried children under 21 can enter the U.S. under the H-4 visa category. Through this process, USCIS grants admittance to qualifying members for the same period 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, traveling in and out of the country as long as you are still in status, and now the ability to receive employment authorization documents (EAD).
However, to qualify for EAD, the principal H-1B holder must have an approved I-140 filed with the USCIS. If USCIS revokes that I-140 or the H-1B holder transfer’s employers, the H-4 EAD holder will not be able to renew their EAD until USCIS approves the I-140.
Recommended article: H-1B to Green Card: Process, Steps & Timeline
The processing for an H-1B transfer typically takes between 4 to 16 weeks after submitting the application to USCIS. Many factors affect the H-1B transfer process length. The location of your employment and even the location of the processing center can have a significant effect on the processing time. Additionally, the workload of the entire immigration system will determine how long it would take for your application to process. However, without a doubt, the longest waiting time that anyone can experience is if your application has errors or is incomplete.
H-1B holders can expedite the transfer process through premium processing. The H-1B processing time for 2022 is just 15 calendar days, meaning that you will be able to get a USCIS decision within just over two weeks for a fee of $2,500.
However, it is essential to note that premium processing does not guarantee that USCIS will accept your transfer petition. It only speeds up your petition’s H-1B processing time, nothing more. If you are transferring from a cap-exempt to a cap-subject employer, you will need to enter 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 H-1B 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 you filed your petition.
There is a considerable difference between regular and premium processing for H-1B applications. Regular processing takes between 4 to 16 weeks, and premium processing is up to 15 days. On average, applicants usually wait for 10 weeks for the decision through regular processing, while on average, premium processing is usually complete in 10 days. Of course, one is much faster than the other, and one should make their decision depending on their situation.
You should choose premium processing for your H-1B if you are short on time or absolutely need your application to be reviewed as fast as possible. For example, one such scenario would be if you are transferring your H-1B to a new employer. The reasoning for premium processing here is that once your application is reviewed, you can start working at your new job. Thus, the faster the transfer is processed, the faster you can start working for your new employer.
Are you 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). So, for example, say you’re trying to get an H-1B visa but are currently in a different category. That’s the type of situation best for a transfer.
If you meet the qualifications to file for an H-1B extension rather than a transfer, you’ll need to follow a particular 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 the date on which your can stay legally in the U.S. until. At that point, you should file an extension of stay before the H-1B status expires.
The Department of Homeland Security’s Federal Register has implemented a rule that took effect in January of 2017. This rule brought with it several changes to many aspects of the H-1B visa, including the H-1B visa transfer.
A section in the new rule mentions the ability that allows an H-1B holder to switch employers in the same occupation. According to the new regulations, H-1B holders need to submit the I-485 Supplement J to prove an active H-1B status making them eligible for an H-1B visa transfer to a new employer.
Along with Supplement J, you will now be able to submit a wider variety of evidence. In the past, USCIS only allowed evidence from an approved federal entity. 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.
Changing H-1B employers may seem simple, but one aspect needs to be front of mind: the cap.
You can’t subvert the H-1B lottery by entering the U.S. through a cap-exempt employer, then transferring to a cap-subject employer afterward. Anytime you change H-1B employers, the new employer must file a new I-129. If the new employer is not cap-exempt, the I-129 will be part of the cap lottery.
As with all regulations, some exceptions may allow some to get around the cap even if they transfer to cap-subject employers.
If you’re changing H-1B employers from a cap-exempt to cap-subject, you can temporarily avoid the lottery by working at both simultaneously. However, if you end this concurrent employment and stay with only the cap-subject employer USCIS can revoke your H-1B visa.
This strategy best serves immigrants like international medical graduates (IMG). IMGs with H-1Bs graduating from residency and fellowship and moving to a private employer are usually stuck in a period where there are no H-1Bs left for the year. If an IMG can have the residency or fellowship program extend the cap-exempt H-1B until October 31 so that they can work at both, they can temporarily avoid the cap lottery.
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.
Suppose you’re moving from cap-exempt to cap-subject, and you’ve previously had a cap-subject position, you might be able to avoid the lottery. If you didn’t use your full six years at the previous cap-subject position, then you can use that spare time and avoid the lottery.
While there is no way to petition for yourself, a loophole 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. If you’re planning on transferring your H-1B job to your own business, it’s best with the help of an experienced attorney.
VisaNation Law Group’s attorneys frequently get asked about the H-1B transfer process and the 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 an entirely separate process on its own. The great thing is that the regular quote will not impact your chances of receiving approval. Because you have already been counted against the cap, USCIS will not enter your H-1B transfer petition into the lottery.
Q. Before 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 you 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 on the number of times you may apply for a transfer. Portability is one of the many benefits of having an H-1B visa over other work visas such as the L-1 visa.
Q. Can I apply for an H-1B transfer with more than one employer at a time?
Yes, nothing is 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 specific 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:
If you can check all of these boxes, USCIS will likely approve your H-1B transfer petition, 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 of working for the new employer before getting the 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 stamp in my passport?
Being on H-1B status and having an H-1B visa stamp is different. The visa stamp authorizes entry into the United States, while USCIS requires H-1B status 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.
Learn more about H-1b visa transfer before stamping in this guide.
Q. Is there an abbreviated H-1B visa transfer process or a quicker way to file?
We often get this question since 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 USCIS denying you. For that reason, you should seek help from an experienced H-1B transfer lawyer.
Q. What if I apply for an H-1B transfer with another employer and it’s approved but later decide to continue working with my current employer?
Even if USCIS approves your H-1B transfer, you can stay with your current employer.
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 H-1B 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 can prove a previous approval (i.e., receipt number, copy of I-797), the new employer can transfer the H-1B even if you have yet to enter the country.
Q. What should I do if I receive an approval notice for my transfer, but it doesn’t have a new I-94?
The government may not have issued you 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. USCIS has already counted you against the cap. So you can file your H-1B transfer petition at any time without fear of not being selected.
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.